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MAYOR AND BURGESSES OF LONDON BOROUGH OF CAMDEN v. ISHOLA AKANNI [1997] EWCA Civ 901 (31st January, 1997)
IN
THE SUPREME COURT OF JUDICATURE
PRO
FORMA
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS
HONOUR JUDGE WHITE
)
Royal
Courts of Justice
Strand
London
WC2
Friday,
31 January 1997
B
e f o r e:
LORD
JUSTICE BROOKE
SIR
BRIAN NEILL
-
- - - - -
THE
MAYOR AND BURGESSES OF THE LONDON BOROUGH OF CAMDEN
Plaintiff/Respondent
-
v -
ISHOLA
AKANNI
Defendant/Applicant
-
- - - - -
(Computer
Aided Transcript of the Palantype Notes of
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HD
Tel:
0171 831 3183
Official
Shorthand Writers to the Court)
-
- - - - -
MR
S CarrottT
(Instructed by Camden Community Law Centre, 2 Prince of Wales Road, London, NW5
3LG) appeared on behalf of the Applicant
MR
C BAKER
(Instructed by London Borough of Camden, Town Hall, Judd Street, London, WC1H
9LP) appeared on behalf of the Respondent
-
- - - - -
J
U D G M E N T
(As
approved by the Court
)
-
- - - - -
©Crown
Copyright
LORD
JUSTICE BROOKE: Sir Brian Neill will give the first judgment.
SIR
BRIAN NEILL: The applicant in these proceedings is Mr. Ishola Akanni. He is
aged 23 and he is applying for leave to appeal against an order of His Honour
Judge White made on 22 January 1997 whereby the learned Judge declined to set
aside a warrant of possession which had been executed on 15 January 1997.
On
30 May 1994, the London Borough of Camden granted the applicant a tenancy of No
2 Rydal Water in Robert Street, London, NW1 and Mr Akanni acquired the status
of a secure tenant. But almost immediately he fell into arrears with the rent.
By the beginning of 1996 the arrears of rent exceeded £1,000.
In
June 1996, Camden issued proceedings, claiming possession of the premises. On
20 June, the area manager wrote to the applicant to inform him of the amount of
the arrears. On 16 July 1996, a suspended order for possession was made. The
order provided that the applicant was to pay £1,548.77 for unpaid rent and
that the total amount, including the costs, was to be paid by instalments of
£23.55 per month in addition to the current rent. The current rent was
stated in the order to be £41.44 a week. But those payments were not kept
up.
On
20 November 1996, the area manager in the Housing Department of Camden wrote to
Mr Akanni in these terms:
"As
at 18th November 1996 your rent arrears stood at £1649.52 not including
this weeks charge of £43.70.
Due
to your failure to keep to the terms of the County Court order obtained by the
Council on 16th July 1996, I now have no option but to request our Legal
Department to arrange for County Court bailiffs to attend an eviction at this
address. I have delegated authority to request this action and the application
has now been submitted.
It
is essential that you contact your Estate Officer, Mrs. Caton immediately on
receipt of this letter in order to discuss this very serious matter, with your
proposals to clear the debt in full, and you should seek independent advice if
required.
You
will be advised in due course of the eviction date, but please note that the
eviction will only be cancelled if the entire debt is cleared. You are also
advised that you can approach the County Court to have the Warrant set aside,
but the Council will resist any such application."
A
few days after that letter was received by Mr Akanni he telephoned Mrs. Caton,
the Estate Officer named in the letter, and promised that he would pay
£600. Previously he had made payments by a post office giro, but Mrs.
Caton told him that he should not pay in that way but should come in to the
District Housing Office and make his payments there. So on 29 November 1996 Mr
Akanni went to Mrs. Caton's office at the District Housing Office but he paid
not £600, which he had promised, but £400. On that occasion he was
given a new temporary rent book as the pages in his existing rent book were
running out. He was told that he should continue with his application for
housing benefit because, it appears, on about 18 November his housing benefit
had come to an end. He had from that date become liable for the full amount of
rent of £43.70.
It
is clear, however, that Mr Akanni did not apply for housing benefit. He did
not continue with his application nor did he make any further payments of rent.
On
15 January 1997, the bailiffs attended at the premises and took possession. Mr
Akanni had a morning job, it seems, and when he returned from work some time
before midday on Wednesday, 15 January he found that the bailiffs were in the
flat. He immediately took steps to try to get the warrant of execution set
aside.
He
applied to the Court. The matter was heard by His Honour Judge White, as I
have already said, on 23 January 1997. The application was dismissed. From
that order, dismissing the application, Mr. Carrott, on behalf of Mr Akanni,
seeks leave to appeal to the Court of Appeal. If I may say so, Mr. Carrott has
given great assistance to the Court in providing us with a chronology of the
events and putting forward on behalf of Mr Akanni all the arguments that could
be advanced on his behalf.
The
points made on behalf of Mr Akanni are these. In his skeleton argument in
writing and also in his oral submissions Mr Carrott has drawn attention to the
fact that until the warrant was executed it would have been open to Mr Akanni
to make an application in accordance with section 85 of the Housing Act 1985
because up until the moment of execution a Court has power to stay or suspend
the execution of the order or postpone the date of possession for such period
as the Court thinks fit. After the date of execution the power of the Court to
take any action is much more restricted. As has been made clear by this Court
in
Leicester
City Council v Aldwinckle
(1991) 24 H.L.R. 40 there is only a limited number of grounds on which a
warrant of execution can be set aside and a tenant can be reinstated in a
property on which the order for possession has been executed. This power of
the Court was examined by the Court of Appeal in
London
Borough of Hammersmith and Fulham v Hill
(1994) 27 H.L.R. 368. In that case Nourse LJ, who gave the first judgment,
said this (at page 371):
"...
the effect of the decision in
Leicester
City Council v Aldwinckle
is that after a warrant for possession has been executed in this class of case
it can only be suspended or set aside if either (1) the order on which it is
issued is itself set aside; (2) the warrant has been obtained by fraud; or (3)
there has been an abuse of process or oppression in its execution."
Mr
Carrott submits that on the facts of this case there was oppression in the
execution of the warrant. He submits that the fact that the warrant of
execution was proceeded with notwithstanding certain representations which were
made either in writing, orally or by conduct in the period in November around
the time of the interview with Mrs. Caton amounted to oppression. He relies,
as I understand it, on five suggested representations.
First,
Mr Akanni was told in terms in the letter of 20 November that he would be
informed of the eviction date in due course. I have read out the last
paragraph of the letter of 20 November in which that statement was made.
Secondly, there was a representation by conduct whereby he was told to come in
to pay the money and to come in quickly. The effect of that representation by
Mrs. Caton was to give the impression that if he came in urgently and quickly
it might resolve the housing difficulties which he was in. The third suggested
representation, again by conduct, is that although he went in with £400
rather than £600, £400 was accepted, and perhaps a reasonable person
in Mr Akanni's situation would have thought: "That is an acceptable amount in
the circumstances." The position would have been quite different had Mrs.
Caton said to him on that occasion: "That £400 is simply not enough. Take
it away." Mr Carrott draws attention to the fact that by making that payment of
£400 he was more than fulfilling the obligation under the order of July.
The
fourth matter relied upon is that on 29 November at the interview at the
District Housing Office he was given a new rent book. The tenancy by that
stage had come to an end and there was no obligation to give him a rent book
and Mr Akanni might well have taken that as an indication that he was still
safe.
The
final matter which is relied upon as one of these representations is that he
was told to continue with his housing benefit application. In those
circumstances, says Mr Carrott, one has to consider: What would a reasonable
person in the position of the defendant deduce from these various
representations? He would, it is submitted, have thought that his position was
secure for the time being. He was lulled into a sense of false security, as it
is put, and the effect of that, so it is suggested, is that he was deprived of
the opportunity to apply to the Court. In this context, Mr Carrott referred us
to passages in the judgment in the
Hill
case in which on the facts of that case it was said that because of
representations made it was at least arguable that the tenant had been deprived
of the opportunity of making an application to the Court and of inviting the
Court to exercise its powers under section 85.
Speaking
for myself, I found Mr. Carrott's arguments, which were put forward very
cogently, worthy of close attention, but I have come to the clear conclusion
that on the facts of this case it would be quite wrong to say that there is any
arguable case of oppression on the part of the Council.
The
position was explained in plain terms in the letter of 20 November that unless
he paid the money in full the proceedings for eviction would go ahead. The
last paragraph opens with this sentence:
"You
will be advised in due course of the eviction date, but please note that the
eviction will only be cancelled if the entire debt is cleared."
It
seems to me that it was not surprising that Mrs. Caton took the £400,
although she had been expecting £600, and it might have been thought
foolish for her to have rejected it altogether. It does not seem to me that
the conduct of the Council in this case could in any sense be called
oppressive, if that word is given its proper meaning.
In
these circumstances, despite all that Mr. Carrott has put before the Court, I
do not think that this is a case where it would be appropriate to give leave to
appeal to the full Court. I would dismiss the application.
LORD
JUSTICE BROOKE: I agree. In this case Mr Carrott invokes the inherent
jurisdiction of the Court in effect to nullify the execution of a warrant of
possession issued by the Central London County Court in respect of his client's
premises at 2 Rydal Water, Robert Street, London, NW1. That such a
jurisdiction exists, there can be no doubt (see
Leicester
City Council v Aldwinckle
24 H.L.R. 40 and
London
Borough of Hammersmith and Fulham London v Hill
27 H.L.R. 368).
I
am only adding a few words of my own in relation to the nature of this
jurisdiction because an expression like "the abuse of process of the court" is
now very frequently used without a clear understanding of what is at stake and
the principles which underlie the inherent jurisdiction.
"The
power of each Court over its own process is unlimited; it is a power incident
to all Courts, inferior as well as superior; were it not so, the Court would be
obliged to sit still and see its own process abused for the purpose of
injustice. The exercise of the power is certainly a matter for the most
careful discretion;"
In
my recent judgment in
AB
and Others v John Wyeth and Brothers Limited
(unreported 13 December 1996) I examined a number of leading cases relating to
the inherent jurisdiction of the Court and then said this:
"Three
themes emerge from these and many other authorities on the topic of the court's
inherent jurisdiction ... The first is that the court has an inherent
jurisdiction to step in and prevent its process being abused for the purpose of
injustice, or in order to maintain its character as a court of justice. The
second is that the court should be very slow to exercise this summary power
(see also
Metropolitan
Bank Ltd v Pooley
(1885) 10 App. Cas. 210, per Lord Blackburn at p. 221: ´it should not be
lightly done'). The third is that the category of case in which the court
should be willing to exercise this power is, almost by definition, never to be
closed."
The
context in which the court is willing in a rare, but appropriate, case to
intervene to nullify the execution of a warrant for possession goes back to the
principles set out in the judgment of Bowen LJ in this court in
McHenry
v Lewis
[1882] 22 Ch. 397 at 408. He said:
"I
would much rather rest on the general principle that the Court can and will
interfere whenever there is a vexation and oppression to prevent the
administration of justice being perverted for an unjust end. I would rather do
that than attempt to define what vexation and oppression mean; they must vary
with the circumstances of each case."
I
agree with my Lord for the reasons that he has given that this is not a case in
which there could be any question of the court exercising its inherent
jurisdiction to interfere and, for those reasons, I would dismiss this
application.
Order: application
dismissed; no order as to costs, save legal aid taxation of the applicant's
costs.
© 1997 Crown Copyright
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