Stay — Possession order — Execution — Hearing of appeal — Whether court has power to suspend order of possession against trespassers without owner’s consent — Whether jurisdiction to grant stay where appellant seeking the setting aside of the possession order — Privy Council ordering stay pending appeal
In 1992, the plaintiffs issued a summons seeking orders for possession of land alleged to form part of Belle Vue Estate, South Oropouche, Trinidad. The summons was under Ord 94 of Rules of Supreme Court of Trinidad and Tobago, which corresponded in all respects for the purposes of the appeal, to Ord 113 of the English Rules of the Supreme Court. The appeal concerned only two defendants, Bibby and Cornwall, who lived in modest wooden structures or shacks apparently since 1984. The defendants did not claim any title to the land, but they asserted that the property where they lived was not part of the Belle Vue Estate and that the documentary evidence which the plaintiffs produced was defective. Possession orders were made at first instance with a stay of execution for 28 days. The defendants applied to the Court of Appeal for leave to appeal and for a continuation of the stay pending the hearing of the appeal. By consent they were given leave to appeal but the Court of Appeal dismissed their application for a stay of the possession orders holding that it had no jurisdiction to make the order sought. The defendants appealed to the Privy Council. Ord 113 provides: “Where a person claims possession of land which he alleges is occupied solely by a person … (not being a tenant …) who entered into … occupation without his licence or consent, the proceedings may be brought by originating summons …”.
Held The appeal was allowed.
1. Under English law a court of first instance which granted relief, whether interlocutory or final, has an inherent power to suspend (“stay”) its order until an appeal was disposed of. The Court of Appeal has a like jurisdiction.
2. In the ordinary course, an application for a stay should be made to the court of first instance. It was usual practice for the application to be made to the judge whose decision was sought to be appealed against and at the time that judgment was given.
3. Where a stay was refused, or unacceptable terms imposed, the appellant could renew his application to the Court of Appeal.
4. Those general principles were as much applicable to possession order as other orders.
5. While Ord 113 was intended to provide a speedy remedy, that did not negative the need for the court to have a discretionary power to stay the carrying out of the possession order while an appeal was pending.
6. The Court of Appeal in the present case seemed to have been led astray by a note to RSC Ord 113 which, in the 1995 Supreme Court Practice, stated that the “court has no power to suspend an order for possession against trespassers unless the owner consents”: see, inter alia, Swordheath Properties Ltd v Floydd [1978] 1 WLR 550.
7. However, that principle concerned whether the court had power to postpone the date on which a lawful owner could recover from someone unlawfully entering his land. The present case was concerned with the court’s powers, where a possession order having been made, the defendant sought to appeal that the order set aside.
8. The plaintiffs had known ever since 1984 that the defendants were living on the property. They consented to the defendants having leave to appeal. Therefore, the fairest and most sensible course was that the defendants should remain where they were until their appeal was decided.
David Watkinson (instructed by Simons Muirhead & Burton) appeared for the appellants; the respondents did not appear and were not represented.
