Supporting Documents:
THE SUPREME COURT
DETERMINATION DECLAN GIBBONS AS PERSONAL REPRESENTATIVE OF THE ESTATE OF VERA HANLEY DECEASED RESPONDENT APPLICANT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES.
Result: The Court does not grant leave to appeal.
Reasons Given:
Jurisdiction
1. This is an application for leave to appeal in respect of an order made in the High Court hearing his appeal against a Circuit Court order. (The applicant has also raised issues in respect of other orders, such as the orders made in the Circuit Court and the refusal of a stay in the High Court. However the reality is that, firstly, the Circuit Court orders were overtaken by the High Court orders and, secondly, leave to appeal in respect of the High Court would, if granted, enable access to appropriate interim measures such as a stay.) The effect of the order was to grant possession of the house in which the applicant is living to his brother in law Mr. Gibbons, as personal representative of the estate of his aunt Vera Hanley (deceased). Mr. Gibbons and his sister Maria Gibbons, who is married to the applicant, are the beneficiaries of the estate.
2. As the applicant appears not to be aware of the effect of the 33rd Amendment to the Constitution, the text of Article 34.5.3 and Article 34.5.4 as they now stand is here set out in full:
3. It is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment that it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. An appeal from the High Court must also present exceptional circumstances.
4. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
The order complained of
5. The late Vera Hanley was the owner of a house in Clontarf. By agreement dated the 1st October 2009 Ms. Hanley let the house to Ms. Gibbons for one year at a monthly rent of €1,100. The agreement provided that if the tenancy went beyond one year it was to be deemed to be a tenancy determinable by one month’s notice in writing. It also provided that the Circuit Court was to have jurisdiction in the event of a dispute.
6. Ms. Gibbons and the applicant continued to reside in the house. Ms. Hanley died on the 28th February 2014. Ms. Gibbons and her brother Declan are the only beneficiaries under the will. Mr. Gibbons was named as executor. He proved and registered the will in January 2015.
7. On the 24th October 2016 Mr. Gibbons’s solicitor wrote to Ms. Gibbons indicating that the sale of the house had been agreed with a proposed closing date of the 5th December 2016. She was asked to vacate the house by that date. A copy of the letter was sent to the applicant. He replied on the following day, stating that he did not consent to the sale. However, on the 17th December 2016 he wrote stating that he was giving “irrevocable consent” to his wife to do all things necessary as she saw fit pertaining to the property. This “irrevocable consent” was withdrawn on the 19th December 2016.
8. The applicant has remained in the house ever since. However Ms. Gibbons left the house on the 21st December 2016. She has sworn an affidavit in the proceedings stating that she accepted that the tenancy was terminated and that her brother was obliged to sell the house in order to administer the estate.
9. In due course Mr. Gibbons issued proceedings by way of an Ejectment Civil Bill. He was granted an order for possession on the 18th July 2017, with a stay of 28 days.
10. The applicant’s appeal against that order was heard in the High Court on the 13th October 2017. Judgment was delivered on the 1st December (see Gibbons v. Addington, Eagar J., 1st December 2017).
11. The issues dealt with in the High Court were: (i) whether the Circuit Court had had jurisdiction to deal with the matter; (ii) the claim made by the applicant that he had agreed with the deceased that he would reside in the house and be responsible for its maintenance; and (iii) that it was his family home. It appears that the applicant also made a number of allegations against persons involved in the case.
12. The High Court held that the Circuit Court had had jurisdiction, having regard to the statutory provisions relating to rateable valuation; that any claim the applicant had against the deceased should have been made within two years of her death; and that the Family Home Protection Act 1976 did not apply where a tenancy had been duly determined. He therefore dismissed the appeal.
13. Noting that the applicant had not left the premises after the order of the Circuit Court, and had paid no rent, the judge refused a stay and ordered that the applicant vacate the premises by the 3rd December 2017.
The application for leave
14. The applicant did not file the form prescribed for applications for leave to appeal to this Court. However the Court gave consideration to the document that he did file, on the basis that if the constitutional criteria appeared to have been met, the Court might have had to expedite the determination of the application for leave to appeal and any associated procedures such as an application for a stay. In the event, the Court considered that the application did not meet the constitutional criteria, but stated that if an application was put in the proper form it would be considered (see [2017] IESCDET 129).
15. The applicant has now filed an application which, although it is not on the prescribed form, adheres to the prescribed format. The Court has again dealt with the matter as swiftly as possible, having requested and obtained the agreement of the respondent to refrain temporarily from enforcement of the order made in his favour while this Court considered the application.
16. The issues raised are as follows.
17. The applicant says that he sought an adjournment in both the Circuit Court and the High Court for the purpose of obtaining legal aid. He does not say whether or not he has at any stage actually applied for legal aid, and if so what the response was. In those circumstances this Court cannot find that there was any injustice in refusing the adjournment. The applicant was on notice from October 2016 that the executor was terminating the tenancy.
18. It is asserted, without particularisation, that the applicant was harassed and cut short by the trial judges. No factual basis is provided for this.
19. It is asserted that the judges wrongly ignored the protection afforded to a family home by the Constitution and instead treated the matter as governed by the tenancy agreement. The applicant submits that it continues to be a family home despite the fact that he is residing there alone.
20. The Court points out that it is not necessary to claim that the house is a family home to avail of the constitutional protection of the dwelling. That protection is set out in Article 40.5 of the Constitution, which provides that the dwelling of every citizen is inviolable and shall not be forcibly entered “save in accordance with law”. The law applicable to the applicant’s circumstances is the law relating to landlords and tenants, including the statute law and the rules of court providing for the recovery of property by a landlord where a tenancy has been validly terminated. The applicant argues that these provisions are “secondary” law, subordinate to the Constitution. That is correct, but the obligation of a Court established under the Constitution is to give effect to legislation duly enacted by the Oireachtas (including delegated legislation such as the Rules of Court) unless it is found to be repugnant to or inconsistent with the Constitution. No constitutional challenge has been properly brought to any of the relevant statutory provisions. The Attorney general is not a party to the proceedings.
21. The applicant says that he a victim of a crime against humanity. This assertion is simply misconceived.
22. It is asserted that the probate process is a “fraudulent mechanism”, that Mr. Gibbons is a “non-person” and that it is unlawful to transfer “ownership” of property to an executor.
23. The Court again points out that it, like every court in the land, is obliged under the Constitution to give effect to duly enacted statute law save where such is found to be repugnant to or inconsistent with the Constitution. No constitutional challenge has been properly brought to any of the statutory provisions governing the probate process.
24. The applicant says that it is irrelevant that he did not pay rent, as he assisted his wife in her work. He also says that after her aunt’s death the rent was reduced by one half, and that the effect of this was to cancel the tenancy agreement.
25. The Court accepts that it is irrelevant who paid the rent so long as it was paid. The reduction after the death of Ms. Hanley simply reflects the fact that Ms. Gibbons and her brother were the joint beneficiaries under the will. The applicant and his wife continued to occupy the house as tenants.
26. The applicant says that his “irrevocable consent” was given when he was under sedation, and should not have been relied upon.
27. The Court considers that the consent issue is irrelevant. The High Court judgment does not turn upon any finding in this regard. The right to terminate a tenancy does not depend upon the consent of a tenant.
28. The applicant has referred to the Universal Declaration on Human Rights and to the European Convention on Human Rights. As a matter of Constitutional law, the former is not directly applicable in this State. The ECHR takes effect as provided for in the European Convention on Human Rights Act 2003 – in brief, the courts are required to take judicial notice of the Convention and relevant case law and to interpret legislation, where possible, so as to comply with the State’s obligations under the Convention. Article 8 of the Convention provides:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others.
29. The applicant has not put forward any argument, addressed to the terms of the Convention and the case law of the Court of Human Rights, that would support the proposition that the Irish law of landlord and tenant is deficient in its protection of the home.
30. The applicant has stressed in his submissions that what he seeks at present is an interim order only, pending submission of a “full” appeal.
31. This approach reflects a misunderstanding of the procedure, which is itself mandated by the Constitution, for granting leave to appeal to this Court. The Court cannot make any form of order, in any case, unless it has determined that the issues raised meet the constitutional criteria for leave to appeal.
Discussion
32. As is clear from a range of determinations made by this Court since the 33rd Amendment of the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. The text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests of justice to permit an appeal to this Court simply because it is said that the lower court was in error. In the case of an order made in the Circuit Court, a full appeal lies to the High Court. Without more, the interests of justice will not require a further review on appeal to this Court.
33. In addition, leave to appeal directly from the High Court requires the applicant to demonstrate that there are exceptional circumstances warranting such an appeal. It is also necessary that the proposed appeal raises at least a stateable case in law.
34. A question that has yet to be determined definitively is whether or not the Court has jurisdiction, under the terms of the Constitution, to give leave to appeal against an order of the High Court made in an appeal against an order of the Circuit Court.
35. It is against that background that it is necessary to consider the basis on which it is said that the constitutional threshold is met in this case.
Decision
36. The question whether the Court has jurisdiction to hear an appeal from an order of the High Court on an appeal from the Circuit Court does not properly fall for consideration in this case. For the reasons given in the body of this determination, the Court considers that the applicant has not demonstrated a stateable case raising any point that meets the constitutional criteria. Leave to appeal to this Court will accordingly be refused. The decision of the Court on the application is now final.
And it is hereby so ordered accordingly.
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