Application & Claim
Cases
Mulhern v Brady
[2001] IEHC 23
Ms. Justice Carroll
This is an application by James Mulhern the registered owner of Folio 3726, County Longford to be registered as full owner of the lands in Folio 2070F, County Longford claiming possessory title against John Brady the registered owner. The application was refused by the Registrar of Title on the 13th of July, 1999 and comes to the High Court on appeal under Section 19(1) of the Registration of Title Act,1964.
The lands in Folio 2070F comprise 0.786 acres and were carved out of lands comprised in Folio 3726 which originally comprised 135 acres 20 perches. It is a site which was sold by the previous registered owner, Dan Kieran Farrell. It is surrounded on three sides by the lands in Folio 3726 and on the fourth side by the public road. Mr. Farrell sold the site to Mr. Brady in 1979 and the new Folio 2070F was opened on 28th February, 1980. Mr. Farrell also sold two other sites out of Folio 3726 on which houses were built. These were Folio 2491F opened in February, 1981 containing 0690 acres and Folio 2492F containing 1.265 acres opened in June, 1981.
In or about 1982 Mr. Farrell exchanged the remaining lands in Folio 3726 (with other lands) with Mr. Mulhern the Applicant for other lands owned by Mr. Mulhern. The exchange document is dated 7th February, 1984 and Mr. Mulhern was registered as owner of Folio 3726 on 12th April, 1985. Mr. Mulhern said he went into possession of the lands exchanged in 1982. He claims he also went into possession of the lands in Folio 2070F at the same time. In his Affidavit sworn on 9th June, 2000 he said the lands in Folio 2070F were surrounded by the lands in Folio 3726 and he said there were no fences dividing the same. This is not so.
It is clear from the maps and photographs produced by Mr. Peter Flanagan, engineer (witness for Mr. Mulhern), that the plot of land in Folio 2070F has clearly defined old boundaries (ditch and hedge) with a number of gaps. One long gap of 24 feet on the west side has a post and wire fence. There is a cattle pen on Mr. Mulhern’s land adjoining the north-west corner. A gate was erected by Mr. Mulhern from the pen into the disputed lands in the weeks proceeding the hearing. This replaced a fence. There are four ten foot gaps and the rest of the gaps are smaller and broken through by animals. The gap in the north-east corner near the road adjacent to the gate from Mr. Mulhern’s lands to the public road did have wire across it six or seven years previously according to Mr. Victor Kiernan, the auctioneer acting for Mr. Brady. There are now two to three strands of wire there. There was also evidence of a v-shaped lay-by on the road at the north-east boundary between the lands in Folio 2070F and Folio 3726. From this v-shaped lay-by it was possible to gain entrance to the disputed lands in former years. Mr. Brady said he could enter the site in 1984 by that route. Mr. Victor Kiernan said it was possible to park a car there up to a few months ago. Mr. Flanagan (recalled) said there is now no entrance from the road but at sometime in the past perhaps there was.
There is a conflict of evidence about the fencing. Mr. Mulhern said that he fenced the plot. He put wire along the road and put wire up on the 24 foot gap. Mr. Dan Kieran Farrell (called by Mr. Mulhern) said he never saw any fence erected and the condition of the boundary was the same three weeks previously as it ever was for the last 45 years. His father had put in the wire. He saw no timber or wire fence. The gaps were there as long as he remembered. Mr. Brady said he fenced the 24 foot gap by post and wire fencing. When he bought it he fenced it to make it safe from trespass. I accept that Mr. Brady did fencing when he bought the land. However he does not say that he did any fencing in the years since 1979–1980. It is possible that animals breaking in knocked down this fencing. If Mr. Mulhern put up fencing between the lands in Folio 2070F and the lands in Folio 3726 he was merely fencing his own lands. The matter does not turn on fencing.
Mr. Mulhern claims that he had exclusive use and possession of the disputed plot either by using it himself or by receiving rent for it. He said he went into possession of the plot in late 1982 at the same time as he took possession of the exchanged lands, because there were entrances to it. He allowed Mr. Farrell to graze the after grass. In 1983-1984 he rented the whole farm to Henry Moorehead. In 1986 he rented the lands back to Dan Kieran Farrell for one year and then for twenty years from the 1st of March, 1987 to the 1st of March, 2007 at £5,000 per annum. Mr. Farrell’s cattle were seized in 1992. Mr. Mulhern said that he and Dan Farrell got hay off the plot in 1993. At the end of 1993and 1994 he said he made an eleven month letting to Gerard Costello although Dan Farrell also paid him rent. He said Mr. Farrell put cattle back with Gerard Costello up to 1996. Mr. Farrell denied that he ever shared with Mr. Costello. After 1996 Mr. Mulhern said the lands were rented out to various people.
Asked if he knew about the site which was sold to Mr. Brady he said George Maloney, Solicitor, who acted for both for him and Mr. Farrell at the time of the exchange, mentioned that three sites were sold off the entire farm. Asked if he had an interest to establish what parts were held by him he said not really; he left it up to his Solicitor. He could not recall Mr. Farrell saying he had sold the plot in question. When it was put to him that Mr. Brady spoke to Mr. Moorehead about cattle trespass he could not recall anything about Mr. Moorehead.
He said the first time he was aware of another owner was when a planning permission notice was displayed in 1997/98. Prior to that he had no knowledge. He did not see any “for sale” sign on the site over a period of months. He was not aware planning permission was granted in 1986 and he was not aware of a sale to Mr. Conway in 1998.
When asked about the 133 acres mentioned in the 20 year lease he said he calculated it from the outline on the Folio map. He did not include any land outside the outline. Mr. Farrell got a lease back of the land he had exchanged.
Mr. Dan Kieran Farrell said he sold the site for £3,000 in 1979. He said the lease back to him did not include the lands in Folio 2070F. He visited the farm everyday when he had cattle on it and from time to time he saw cattle on the disputed land. He let his cattle break in through the gaps. He was not claiming entitlement to the land.
A neighbour, Edward Dervan, who has lands on the opposite side of the road said he saw horses, cattle and sheep on the disputed lands from time to time. They got in and out of the field through the gaps. He also said he saw a sign for sale.
Mr. John Brady, the Respondent and registered owner, lives about four miles away from the site. He said he came four or five times a year and went on site. On one occasion in the mid-eighties he saw cattle on the land. He told Mr. Moorehead he was trespassing. Mr. Moorehead apologised and removed the cattle.
He bought the site to build a house but did not build because he inherited another house. He got planning permission in 1980 and again in 1986 when it was advertised in the newspaper. He said he put a notice on the site. He sold the site to a Mr. Conway in 1998 who got planning permission in that year, but the sale fell through. He then sold recently to another purchaser, Mr. Donohoe. The plot was too small for renting. He was not aware of any machinery being brought onto the land. He only saw cattle there once with Mr. Moorehead and he never saw Mr. Mulhern before seeing him in Court.
Mr. Victor Kiernan, an auctioneer acting for Mr. Brady was familiar with the site and visited it ten or twelve times. He never saw cattle there. He put a “For Sale” sign up (2 feet x 2 feet) which could be seen for thirty yards. This was six or seven years ago when Mr. Brady wanted to sell. He said it was up for six months to a year.
In my opinion based on that evidence, there was no abandonment by Mr. Brady. He visited the plot four or five times a year and only once saw cattle trespass which he dealt with. He advertised for planning permission in 1986 in local newspapers and his auctioneer erected a For Sale sign for six months to a year. Mr. Mulhern’s version is that he exchanged the lands with Mr. Farrell which did not include the plot in Folio 2070F but he thought it did because he did not bother to find out what plots were sold out of the farm. I find it hard to believe a farmer would not bother to find out exactly what land he was getting. When he rented to Mr. Moorehead, Mr. Moorehead must have been under the impression that the plot in question was part of the lands rented but he removed his cattle when Mr. Brady told him he was trespassing.
When Mr. Mulhern leased the farm back to Mr. Farrell for £5,000 per annum for twenty years he only leased back what he got in exchange. Mr. Farrell knew that the plot in question had already been sold by him to Mr. Brady and was under no illusion that it formed part of the 133 acres comprised in the lease. No rent was paid in respect of the plot to Mr. Mulhern. Mr. Farrell allowed his cattle to trespass on Mr. Brady’s land from time to time knowing it to be Mr. Brady’s land and without any intention of ousting him.
Mr. Mulhern falls in his claim as he cannot establish twelve years continuous occupation and possession to the exclusion of the registered owner. There was no open assertion of title as evidence of intent to extinguish the title of the registered owner. He relied on the acts of his tenants, Mr. Moorehead and Mr. Farrell, between 1983 and 1996. But Mr. Moorehead removed his cattle when asked by Mr. Brady and Mr. Farrell who allowed his cattle to trespass from time to time had noanimus possidendi. User of the land after Mr. Mulhern vacated it as immaterial. The law on adverse possession has been very succinctly summarised by O’Hanlon J. in Doyle -v- O’Neill & Anor (Unreported) 13th January, 1995.
“In order to defeat the title of the original land owner I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a land owner alert to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”
He said at page 20:-
In this case I am quite satisfied that Mr. Mulhern has not established twelve years adverse possession and occupation to the exclusion of the registered owner. Accordingly, he fails in his application.
The State (Philpott) v Registrar of Titles
[1986] ILRM 499, [1985] 7 JIC 2901
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Gannon J.
Judgment of Gannon J. delivered the 29th day of July, 1985
This is an application to make absolute notwithstanding cause shown a Conditional Order of Certiorari granted on the 6th of May, 1985 directed to the Registrar of Titles in the Land Registry. The prosecutor was on the 28th July, 1983 registered full owner with possessory title of 4.505 hectares in the townland of Glenaknockane, Barony of Duhallow, Co. Cork in folio 29970F of the Register of Freeholders Co. Cork. On the 19th of February, 1985, the respondent, the Registrar of Titles, entered on the said folio an inhibition against all dealings with these lands without the approval of the respondent. Prior thereto the prosecutor had entered into a contract on the 23rd of November, 1984 for the sale with other lands of the lands on this folio. The sale had not been closed on the 7th of December, 1984 which was the closing date prescribed in the contract and completion was still pending on the 19th of February, 1985. The prosecutor had had no notice of the intended entry of the inhibition on the folio, the entry whereof is in purported exercise of a power conferred on the respondent pursuant to section 121 of the Registration of Title Act 1964. The first notification the prosecutor received of the exercise of this power by the respondent was a letter dated the 25th of February, 1985 from the Examiner of Titles in the Land Registry with which was enclosed a letter dated the 28th of September, 1984. Although not expressed to be from the Registrar the letter appears to have been sent in compliance with subsection (3) of section 121 of the 1964 Act. The letter is addressed to the solicitors for the prosecutor with a heading referring to the folio and lands of the prosecutor and is signed by the Examiner of Titles. It states as follows:-
“Dear Sirs,”
We had correspondence from Messrs. David J. O’Meara & Sons of Bank Place, Mallow, Co. Cork on behalf of Mr. Bartholomew Leahy of Knock, Lyre, Banteer and John Scanlon and John Sheehan of Glenaknockane, Lyre, Banteer claiming rights. We enclose herewith a copy of our reply of the 28th September, 1984.
It has been decided to enter an inhibition under section 121 of the Registration of Title Act 1964in the event of there being an error and claim under this section. The inhibition reads “all dealings are inhibited except with the approval of the Registrar of Titles”.
A copy of this letter has been sent to the registered owner, Christopher Philpott.”
The enclosure with that letter was a letter from the Examiner of Titles to Messrs. David J. O’Meara & Sons, Solicitors, Bank Place, Mallow, Co. Cork with a reference to folio 29970E County Cork, registered owner Christopher Philpott of Glouncome, Lyre, Banteer, Co. Cork your clients Bartholomew Leahy of Knock, Lyre, Banteer and John Scanlon and John Sheehan of Glenaknockane, Lyre. It said:-
“Dear Sirs,”
Your letter of the 17th September, 1984 addressed to Richard Sherlock of this office has been passed to me.
On the basis of the effect of registration with a possessory title as set out in section 38 (1) of the Registration of Title Act 1964the registration of Christopher Philpott is in order.
Any person aggrieved by the decision may appeal to the Court under section 19 (1) of the said Act. Alternatively, an application may be made to convert the title under section 50 (1) of the said Registration of Title Act and rule 38 (3) of the Land Registration Rules 1972. If the applicants application is based on possession form 5 of the said rules should be considered, in a similar manner to an application for first registration based on possession.
You should also see sections 97 and 98 of the Registration of Title Act 1964. Your clients may have rights which can be protected under these sections.
Your clients rights may also be protected under paragraphs (h), (j) or (p) of subsection 1 of section 72 of the said Act.”
It is signed by the Examiner of Titles.
On receipt of notification of the entry of the inhibition the prosecutor’s solicitors enquired from the Examiner of Titles if the purchasers from the prosecutor could be registered as owner on completion of the sale. The reply from the Examiner of Titles is dated the 27th of March, 1985 and is as follows:-
“Dear Sirs,”
We are in receipt of your letter of the 28th February 1985 which has only recently reached the writer.
The inhibition may not be removed until the matters arising on the title and the registration are rectified and the registration of Patrick and Particia Barry may not be completed.
The registration of Christopher Philpott with a possessory title was made on foot of the affidavit dated the 11th May, 1981 of Christopher Philpott and your letter of reply of the 1st June, 1983. It is now possible that the registered owner is not entitled to the fee simple. An application to convert the title to absolute should be made by the registered owner. All parties will then be notified and their rights clarified if possible.”
It is signed by the Examiner of Titles.
The grounds upon which the Conditional Order of Certiorari was granted on the 6th of May, 1985 are set out in the following four paragraphs in the Order namely:-
2 “1. That the decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles failed to adhere to the procedure laid down by the said section in and about his decision to enter the same.
2. That the decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles failed to adhere to the procedure laid down by the land registration rules for the entry of such inhibitions.
3. That the said decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles, prior to the time when he entered the said inhibition on the register, failed to inform the prosecutor either of the fact that he proposed to enter such an inhibition or the grounds for such entry or to afford to the prosecutor an opportunity to make representations or otherwise to be heard by him in relation to the entry of the said inhibition.
4. That the Registrar failed to exercise his power to enter inhibitions on the register pursuant to section 121 of the Registration of Titles Act 1964in accordance with the requirements of constitutional and natural justice.”
The prosecutor accordingly challenges the determination of the Registrar to place an inhibition on the folio on the grounds that the Registrar did not conform to the requirements of section 121 of the 1964 Act, nor comply with the requirements of the land registration rules for the entry of an inhibition; and further that by failing to give to the prosecutor previous notice and a hearing on the matters upon which the determination was made there was a denial of justice which invalidates the entry on the folio. The respondent shows cause by affidavit which, unfortunately, does not depose to anything that he as Registrar of Titles did or did not do. In his affidavit showing cause the Registrar deposes that the Examiner of Title “in the course of investigating the title sought to be registered on behalf of the prosecutor” was not satisfied about certain matters pertinent to the registration of title. The affidavit discloses that in correspondence between the Examiner of Titles and other parties in September, 1984 unspecified matters were ascertained which indicated that an error may have been made in effecting the registration of the prosecutor’s title. The registration of the prosecutor’s title had been effected in July, 1983. It is evident from the affidavits filed on behalf of both parties that when examining the evidence in support of the application by the prosecutor for registration the Examiner of Titles had no communication with the parties referred to in his letter of the 28th of September, 1984. The affidavits also show that after registration had been completed the Examiner of Titles when replying to enquiries of the parties referred to in his letter of the 28th of September, 1984 did not have any communication with the prosecutor, the then registered owner, with reference to whose registration the enquires apparently were being made.
Section 121 of the Registration of Title Act 1964under which the registrar, the respondent, acted is as follows:-
2 “121 (1) Whenever it appears to the Registrar that an error which may be capable of rectification has been made in registration, the Registrar may enter in the register such inhibition against dealings with the land or the burden affected by such error as he thinks proper for the purpose of protecting the Central Fund against claims for compensation in respect of losses occasioned by registrations made after such error is discovered and before it is rectified.
(2) An inhibition entered in the register under this section shall not affect any registration actually pending in the central office when such inhibition is entered nor prevent the completion of such registration.
(3) Whenever the Registrar enters an inhibition under this section, he shall send notice of such inhibition and of the error because of which it was entered to all persons who appear from the register to be affected by such error and to such other persons (if any) as may be prescribed.”
By Section 3 (1) of the 1964 Act “prescribed” means prescribed by general rules. Section 120 of the 1964 Act provides for the payment of compensation in respect of losses occasioned
(a) by rectification of an error originating in the Land Registry and rectified pursuant to section 32 (1) of the Act,
(b) by an error originating in the Land Registry which was not rectified under that subsection,
(c) by an error of entry in or omission from the register procured by forgery or fraud,
(d) by an error in an official search and
(e) by an error in the Land Registry Office copies of documents.
This section is of importance in cases of first registration founded upon claims based solely upon long continuous adverse possession. Such appears to be the basis for the registration of the prosecutor on Folio 29970F County Cork. The other section of the Act which provides expressly for the entry of an inhibition on the folio is section 98. For the purposes of comparison and guidance on the intendment of the Act it would be advisable to quote that section also which is as follows:
2 “98 (1) The court or, subject to an appeal to the court, the Registrar, on the application of any person interested in any registered land or charge, may, after directing such inquiries (if any) to be made and notices to be given and hearing such persons as the court or Registrar thinks expedient, make an order or, in the case of an application to the Registrar, an entry, inhibiting for a time, or until the occurrence of an event to be named in the order or entry, or except with the consent of or after notice to some specified person, or generally until further order or entry, any dealing with any registered land or registered charge.
(2) The Registrar, on the application of the person who has “obtained an order of the court under the provisions of this section, shall make an entry of the order on the register in the prescribed manner.
(3) The court or Registrar may annex to any such order or entry any terms or conditions they think fit, and may discharge any such order or cancel any such entry, and generally may exercise such powers as the justice of the case requires; but nothing herein contained shall empower the Registrar to discharge an order made by the court.
a (4) (a) Nothing in this section shall authorise any restrictions to be imposed on the powers of a tenant for life, or a person having the powers of a tenant for life, under the Settled Land Acts.
(b) Any entry made under this section may be withdrawn or modified at the instance of all the persons for the time being appearing by the register to be interested therein.”
These are the statutory provisions upon which the prosecutor relies in support of ground 1 of the Conditional Order. In support of ground 2 the prosecutor relies on rules 137 to 145 of the Land Registration Rules of 1972. Other than these rules, which clearly prescribe for the implementation of the provisions of section 98 of the 1964 Act, there are no other rules specifically referable to section 121 of that Act. Although the express purpose of the use of the power conferred by section 121 is to enable the Registrar to protect the common fund its effect is to maintain a position of no change by preventing any effective dealings with the registered land or with ownership of any interest in it until the inhibition has been removed. The section places no obligation upon the Registrar to correct the error nor does it make any provision for the removal of the inhibition.
In a well constructed and carefully prepared argument Mr. McCarthy for the prosecutor submitted that the exercise by the Registrar of the power conferred by section 121 of the 1964 Act requires a determination by the Registrar made upon consideration of facts or matters relative to the administration of the registration of ownership of land. It is a power for the exercise of which the rules or regulations make no express provision and consequently leave the determination in the sole discretion of the Registrar. The rights of the registered owner to transmit his interest or to create a charge upon it are prohibited and are so affected by reason not of the facts or matters considered by the Registrar but by virtue of his determination upon such facts and matters and his consequent exercise of the power conferred by section 121. In support of his contention that the function and power invested in the Registrar by section 121 is in the nature of a judicial act and one which must be exercised in a judicial manner Mr. McCarthy cited the statement of Palles C.B. in Reg. (Wexford County Council) .v. Local Government Board 1902 2 I.R. 249 quoted by O’Byrne J. in the State (Crowley) .v. Irish Land Commission 1951 I.R. 250 at 265. The quotation from the Chief Barron is as follows:
“I have no hesitation in saying that I have always considered, and still consider, the principle of law to be as stated by the Chief Justice”
(here he refers to the observations of May C.J. in Reg.-v- Corporation of Dublin 2 L.R.I. 371 at 376)
“assuming that there is nothing in the statute constituting the particular tribunal or investing it with the particular power which indicates a contrary intention. I have always thought that to erect a tribunal into a “Court” or “jurisdiction” , so as to make its determinations judicial, the essential element is that it should have power, by its determination within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact. It is otherwise of a ministerial power. If the existence of such a power depend upon a contingency, although it may be necessary for the officer to determine whether the contingency has happened, in order to know whether he shall exercise the power, his determination does not bind. The happening of the contingency may be questioned in an action brought to try the legality of the act done under the alleged exercise of the power. But where the determination binds, although it is based on an erroneous view of the facts or law, then the power authorising it is judicial.”
It was argued that the power, being a personal one exercisable at his discretion by the Registrar, imposes the onus to conform strictly with the statutory requirements permitting a determination to be made. Mr. McCarthy contended that the exercise of the power in a judicial manner requires personal enquiry by the Registrar – the only person on whom the power is conferred – to ascertain facts from which the inference may be drawn that an error giving rise to a claim for compensation has been made in the Land Registry which is capable of rectification. He submitted that such enquiries would in justice require communication with the registered owner, and if the rights to be affected relate to the registration of the registered owner, justice requires that the registered owner be given an opportunity of defending his right as, and to be, the registered owner. In support of his contentions Mr. McCarthy cited the observations of Walsh J. in East Donegal Co-Operative -v- Attorney General 1970 I.R. 317 at 343:-
“All the powers granted to the Minister by section 3 which are prefaced or followed by the words “at his discretion” or “as he shall think proper” or “if he so thinks fit” are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will. Therefore, he is required to consider every case upon its own merits, to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be thought to exist against the granting of a licensee or for the refusal of a licence or for the attaching of conditions, or for the amendment or revocation of conditions which have already attached, as the case may be.”
Mr. McCarthy contended that the stated objects of the 1964 Act most pertinent to this instant application are expressed in sections 121, 120, and 98 and in the rules made under the Act, in particular rules 137 to 145 inclusive. He submitted that justice required that the Registrar should disclose to the registered owner the existence of facts or information from which an error in the registration can be identified, the nature of the error, whether or not it is capable of rectification pursuant to the provisions of section 32 (1) of the 1964 Act or otherwise so coming within the scope of section 120 (1) as to necessitate the protection of the common fund from a claim for compensation. Mr. McCarthy argued that there is nothing in section 121 which relieves the Registrar from the obligation of giving to the registered owner before entering an inhibition under that section the sort of notice and information required before entry of an inhibition under section 98. By subsection (3) of section 121 the Registrar is required to give such notice and information after the entry of the inhibition. Mr. McCarthy submits that if the power conferred by section 121 is to provide for a circumstance of some urgency, such as a threatened or pending claim for compensation, the information to be furnished under subsection (3) should state the facts creating such circumstance. The rules and forms prescribed by the Act specify the terms in which an inhibition may be expressed, but the inhibition entered by the Registrar does not conform to these. It would seem from the prescribed rules and forms, Mr. McCarthy maintains, that an inhibition is intended to be of only temporary effect. But, he pointed out, the inhibition under section 121 seems to be permanent in its effect unless and until the registered owner or some person to whom the Registrar has given notice takes some step either for the removal of the inhibition or for rectification of the register.
For the respondent showing cause Mr. Clarke submitted that section 121 confers a power on the Registrar to protect the common fund from claims for compensation due to error occurring in the registration of ownership or other interests in the land. Because of the nature and purpose of the power conferred its effect is of an interim nature only, to preserve the status quo and to prevent the acquisition of rights by unregistered persons, pending rectification of an error. He compared section 121 with section 98 showing the distinctive characteristic of section 121 to be its holding operation and peremptory nature with subsequent notice putting contending parties in a position to agree or take steps for rectification of the error. He argued that it was within the power of the Registrar to remove the inhibition if the person whose claim or representations gave rise to the entry failed to proceed. He referred to rule 142 of the 1972 rules which provides for application to the Registrar on notice for the modification or discharge of an inhibition. This rule he submitted applies to inhibitions entered pursuant to section 121 as well as to those entered on the application of persons other than the Registrar. He argued that no injustice is done by a necessarily peremptory but temporary restraint on the rights affected where provision is made for subsequent immediate enquiry and is subject to a right of appeal under section 19 of the Act.
On the matter of the residual right of appeal to correct a determination found to be not in accordance with the principles of justice Mr. McCarthy referred to comments of McGarry J. in Leary -v- Nation Union of Vehicle Builders 1971 1 Ch 34 cited with approval by Pringle J. in Ingle -v- O’Brien 109 I.L.T.R. 7 at page 11. He also quoted from the judgment of O’Higgins C.J. in the State (Abenglen Properties Limited) -v- Dublin Corporation 1982 I.L.R.M. 590 at 597 where he says:-
“The question immediately arises, as to the effect on the exercise of the court’s discretion, of the existence of a right of appeal or an alternative remedy. It is well established that the existence of such ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of jurisdiction involved, the existence of such ought not to be a ground of refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where under administrative legislation, adequate appeal machinery particularly suitable for dealing with errors in the application of the code in question exists. In such cases, while retaining always the power to quash, the court should be slow to do so, unless satisfied that, for some particular reason, the appeal or alternative remedy is not adequate.”
Mr. McCarthy pointed out that in the absence of sufficient information in either the notice of entry of the inhibition, namely the letter of the 25th February, 1985, nor in the affidavit showing cause as to the facts or circumstances giving rise to the entry of the inhibition the prosecutor, the registered owner, does not know the nature of the case required to be made by him nor of the case he might expect to meet in the event of an appeal by him under section 19 of the 1964 Act. In reply to the contention that the inhibition is a mere holding operation of a temporary but urgent nature he submitted that the only matters properly within that description, namely matters pending in the central registration office, are in fact excluded by subsection (2) of section 121 from the effects of an inhibition under that section. He contended that the entry on the folio gives no indication that the inhibition is intended to have only temporary effect.
Having given careful consideration to the legal principles enunciated and to the arguments submitted I am satisfied that the application of the prosecutor is well founded. The establishment of the register to evidence ownership of land and of rights over land of which the ownership is registered necessarily involves serious consequences from registration of cautionary notices or inhibitions affecting registered land. The determination to enter an inhibition is entrusted only to the Registrar, and must be exercised by him in a judicial manner. Section 121 of the 1964 Act which gives him a discretion in the exercise of this power sufficiently indicates the purpose and circumstance for its exercise. In my opinion every exercise of this power should be capable of being identified as protecting the common fund from a real probability of a claim for compensation, and should relate to an identifiable error made in the Land Registry of a nature for which compensation could be payable in accordance with section 120 of the Act. The use of the power conferred in section 121, while available to anticipate an urgent situation, is not confined to such circumstances. The section does not require that the inhibition should be limited as to the time of its duration or its purpose. Nevertheless, conformity with the other like provisions of that nature in the statute requires that its limitations (if any) of time and purpose should be disclosed by the entry. It is understandable that in the circumstances of some urgency for the protection of the common fund it would be imprudent or impractible to give, prior to making the entry of the inhibition, the notice and opportunity for hearing indicated in subsection (3) of section 121. But because of the grave nature of the interference with rights over land and the evidence thereof empowered by section 121 I am of opinion that, unless the urgency of the circumstances otherwise require, justice requires that notice should be given to the person whose rights may be affected of the intention to enter such an inhibition and an opportunity given to show cause why it should not be entered. By so doing the primary object of the section, namely the protection of the common fund from claims for compensation, could be achieved without injustice to any party. Whether a contrary effect might result is something which the Registrar would have to assess in every case as it arises and upon its own facts. On the evidence before this court there is nothing to show that the purpose of section 121 is being achieved, namely that there is any risk of any claim for compensation of a nature indicated in section 120 which is being prevented or avoided. There is no evidence to suggest an urgency which made it necessary to proceed without communication to the registered owner, nor of circumstances suggesting that to do so might in any way defeat the purpose of section 121. There is also an absence of sufficient evidence to show that the Registrar gave his personal attention to the factors supporting a proper determination under this section or that the determination was in fact made by him. I accept the arguments advanced on behalf of the prosecutor as supported in evidence and sound in law. In my opinion all four grounds on which the Conditional Order was made have been established and cause shown must be disallowed.