R (Greenaway) v Justices of Armagh
| Jurisdiction | Northern Ireland |
| Judgment Date | 04 February 1924 |
| Date | 04 February 1924 |
| Docket Number | (1923. No. 48.) |
| Court | Court of Appeal (Northern Ireland) |
Appeal. (N. I.)
Grand Jury (Ireland) Act, 1836 (6 & 7 Wm. 4, c. 116), sect. 162 - Order of Justices authorizing entry on lands to make and cleanse drains - Decision of Justices that the lands are not an orchard not conclusive - Certiorari - Right of entry not limited to a definite time - Validity - Jurisdiction of Court of Appeal in Northern Ireland.
Appeal on behalf of the County Council of Armagh from an order of the King's Bench Division (N.I.) making absolute a conditional order for a writ of certiorari to quash an order made by Justices at Petty Sessions on the 7th May, 1923, granting an application by the County Council of Armagh for an order under sect. 162 of the Grand Jury Act, 1836 (6 & 7 Wm. 4, c. 116), to enter certain lands in the occupation of Eliza Jane Greenaway to make and cleanse drains therein.
The following statement of the facts is taken from the affidavit of the prosecutor:—
The lands [through which it was sought to make drains] are an orchard, and as such are kept and maintained by me. The orchard consists of twenty-nine apple trees and four damson trees and a number of currant and gooseberry bushes on the one side of the proposed drain, and twelve apple trees, eighteen damson
trees, and one pear tree on the other side, covering one-half acre, and the trees are in good order and full bearing.The prosecutor, in her affidavit, prayed for an order of certiorari to bring up the order made at Petty Sessions on 19th June, 1923, for the purpose of quashing it on the grounds that (a) the order was made without jurisdiction and in excess of jurisdiction; (b) the order was bad on its face, (i) as it gave power to complainants to make and cleanse drains, and (ii) as there was no time limit on the duration of the authority thereby given; (c) the lands, the subject-matter of the order, are an orchard; (d) the order is bad for uncertainty and ambiguity.
The county surveyor, on the hearing before the Justices, deposed that there was no orchard on the west side of the drain, and that the drain was not to go in or through any orchard.
The King's Bench Division, N.I. (Sir D. S. Henry C.J. and Brown J.), held that certiorari should be granted on the ground that the proposed work was not contemplated by the statute, as the drain would draw off water from Derryadd Lake rather than from a flooded road, which would receive only an indirect benefit.
An order made under sect. 162 of the Grand Jury (Ireland) Act, 1836 (6 & 7 Wm. 4, c. 116), by which Justices had authorized drains to be made by the county surveyor, was quashed on certiorari by the King's Bench Division, on the ground that the proposed drains would draw off water from a lake rather than from a flooded road, and were works not contemplated by the statute. The order for certiorari was affirmed by the Court of Appeal, that Court holding on the evidence that the land through which the drains were to be made constituted an orchard within the exception to sect. 162.
Where the jurisdiction of an inferior Court depends upon a fact collateral to the actual matter which that Court has to try, it cannot by a wrong decision with regard to that fact give itself jurisdiction which it would not otherwise possess. The lower Court must decide as to the collateral fact in the first instance, but the superior Court may upon certiorari inquire into the correctness of that decision. Rex (de Vesci) v. Justices of Queen's County([1908] 2 I.R. 285) and Rex v. Bradford ([1908] 1 K.B. 365) approved.Rex (Darcy) v. The Justices of County Carlow ([1916] 2 I.R. 313) disapproved.
An order of Justices authorizing a county surveyor to enter upon lands for the purpose of making drains is not bad on its face, because it does not specify a definite time limit. Reg. (Bentham) v. Justices of County Dublin(14 L.R.I. 443) overruled. Rex v. Adams ([1923] 1 K.B. 415) followed.
The Court of Appeal of Northern Ireland has jurisdiction to reconsider decisions of the late Supreme Court of Appeal in Ireland, but this jurisdiction should be sparingly exercised.
| Moore L.J. :— |
This case came before us by way of appeal from an order of the King's Bench Division, directing certain proceedings before the Armagh Justices to be removed into the King's Bench for the purpose of being quashed.
The matter in dispute came before the magistrates sitting at Clonmacate Petty Sessions, Co. Armagh, on May 7th, when the county surveyor applied to them for an order against the defendant, Mrs. Greenaway, under sect. 162 of the Grand Jury (Ireland) Act, 1836, authorizing him to make drains through her lands for the purpose of relieving flooding on a public road.
Mrs. Greenaway contended that the intended drain would pass in or through an orchard, her property, and that consequently the Justices had no jurisdiction to make any order.
The Justices found that the drain would not pass in or through an orchard, and made an order in the following terms:— [His Lordship read the order.]
Mrs. Greenaway applied in the King's Bench Division for a conditional order to bring up the magistrates' order on certiorari, and eventually—after cause shown and disallowed—the King's Bench Division made the present order appealed from.
Before us three grounds against the order were relied upon: 1, that the order was bad on its face, as it contained no time limit for the performance of the works authorised; 2, that, inasmuch as in fact the lands were an orchard, the Justices had no jurisdiction to make the order; and 3, that the proposed works were really not drainage of water from the road, but drainage of Derryadd Lake, near the road—a work not contemplated by sect. 162.
The first question for us is, is the order bad on its face in respect of the absence from it of any time limit? A number of cases is collected in O'Connor's Justice of the Peace, 2nd ed., vol. i, at p. 215, in support of the proposition that the order is bad for want of a time limit. There are, however, no express words in sect. 162 making this necessary. How far is it a necessary implication from the true construction of the section? The first case decided on this point in Ireland was R. (Bentham)v. Dublin Justices(1). On reading the report it will be seen how unsatisfactory that case is; no judgments are given, merely the effect of the order. The decision in Bentham's Case(1) has on subsequent occasions come frequently before the King's Bench Division; but, though the Judges have often expressed their doubt, they have held themselves bound to follow it until reversed in the Court of Appeal. In Reg. (Murphy) v. Justices of Wexford(2), Sir P. O'Brien C.J. stated that the decision inBentham's Case(1) "took him by surprise, and he rather hoped there might have been an appeal," p. 89; in R. (Guinness) v.Justices of County Louth(3), Gibson J. says of Bentham's Case(1): "If the point is to be reconsidered, it must be considered, not in this Court, but in the Court of Appeal." Murphy J. refused to admit that Bentham's Case(1) applied, but proceeded to deliver a judgment in effect condemning it.
The decision, however, in Bentham's Case(1) appears to be solely grounded upon the only authority referred to, Earl Manvers v. Bartholomew(4). As I understand the judgments in that case upon a corresponding statute in England, they merely amount to this, that the order—therein called a licence—is not to be a general or perpetual authority over successive operations, but in protection of the subject should be so restricted in its effect that it will be limited to each individual work authorised for the actual application. For every fresh work there must be an application. This view is further borne out by the decision
in R. v. Adams(1), to which Mr. Murphy has referred us, in which Manvers v. Bartholomew(2) is thus explained. What view of this question was taken by the King's Bench Division in Northern Ireland does not appear; following a long line of precedent, that Court would probably have considered itself bound to follow Bentham's Case(3), but now for the first time that case has in effect reached the Court of Appeal, though in Northern Ireland, and we must deal with it. I am of opinion that the absence of a time limit from the order before us does not invalidate it in any way, and that we must overrule the law as laid down by the decision in Bentham's Case(3).The second question for our determination is whether or not we are empowered to go behind the magistrates' order, purporting on its face to be regular, to inquire if it was in fact made without jurisdiction; and on this most of the argument before us has been maintained. It is conceded that if the lands of the defendant were in fact an orchard, the order should not have been made. But how far is the magistrates' determination on this conclusive, so that we cannot examine into or interfere with their decision?
The head-note in the case of R. (de Vesci) v. The Justices of Queen's County(4) runs thus: "It is a condition precedent to the jurisdiction of Justices to make an order under sect. 162 . . . that the lands are not an orchard; and their decision that it is not an orchard may be challenged on certiorari, not merely on the ground that there was no evidence to support it, but also with reference to the weight of evidence." This correctly represents the judgments of Lord O'Brien C.J. and Gibson J.R. v. Bradford(5) is referred to in the judgment of Gibson J. A similar case had previously been decided by the Court inR. (Holmes) v. Justices of King's County(6), though this case does not appear in the authorised reports. But the ratio decidendi is this—that where the subject-matter of the application is within the jurisdiction of the Justices the Court will not interfere, even if they go wrong in fact; but where there is of necessity a preliminary inquiry—or, as it has been...
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