England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Pumfrey)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Master Venn)
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Mr Justice Rimer)

		Royal Courts of Justice Strand London WC2 Wednesday, 31st July 2002

Wednesday, 31st July 2002

1. LORD JUSTICE ROBERT WALKER: It is now 11.50, that is more than three quarters of an hour after the "not before 11.00" marking for the applications that were to have been made by Mr Dick Chitolie. I shall refer to Mr Dick Chitolie, who is a litigant in person, as "Mr Chitolie", and to those of his brothers as I need mention by their full names.
2. The applications that Mr Chitolie was to have made fall into three groups, two of which are more or less directly connected with the fact that on 7th March 2002 Mr Chitolie was required to leave a house in Sydenham, 30 Girton Road, where he had been in occupation since about May 2001. This house formed part of the estate of his late sister, Mrs Julietta Christmas, who died on 5th March 2001. She left her residuary estate (which included her house) to her five brothers and her mother in equal shares.
3. Mrs Christmas left a will dated 28th February 2001 appointing two other brothers of hers, Mr Andrew Chitolie and Mr Simon Chitolie, as her executors. Probate of her will was granted to them on 13th June 2001 and on 3rd October 2001 the executors started proceedings against Mr Chitolie for possession of 30 Girton Road.
4. Mr Chitolie claims vehemently that Mrs Christmas' will dated 5th March 2001 was a forgery. He has however so far taken no effective legal action (and I stress the word "effective") to make good this very serious allegation.
5. On 8th March 2002, very shortly after his eviction from 30 Girton Road, Mr Chitolie made an application to Ferris J in the Chancery Division. I will at a slightly later point in the judgment describe what had happened in the executors' possession proceedings down to that time. The application to Ferris J, if it can be properly called that at all, was wholly informal, without any proper application form or notice to the other side.
6. Ferris J dismissed the application and refused permission to appeal. The first group of applications by Mr Chitolie consisted of his application for permission to appeal from Ferris J and three ancillary applications linked to the main application.
7. Those applications were listed before me at 10.00 a.m. on 30th May 2002, when the list was very full. Mr Chitolie was not present in court at 10 o'clock, nor when I finished giving the judgment which I gave on his applications, starting at about 10.05. He came into court during the hearing of the next application and I had to tell him that there was no prospect of being able to hear him later that day.
8. Mr Chitolie has therefore applied to have reinstated the group of four applications which I dismissed on 30th May last. In his application notice he has said in a statement of truth that he was not told that the matter was listed for 10.00 a.m.. He has also contended that his applications ought not to have been listed before a single lord justice sitting in open court and he has applied for the matter to be listed before the full court. However, the Court of Appeal is properly constituted to hear applications of this sort by a single lord justice sitting in open court: see section 54(2) of the Supreme Court Act 1981. Litigants cannot choose their judges any more than judges can choose their litigants.
9. I will go back to the possession proceedings, quoting from the judgment which I gave on 30th May last:

"5.Before the executors started their proceedings, Mr Chitolie had on 13 August 2001 made an application to revoke the grant of probate. This application was stamped by an official in the Chancery Division offices and it seems somehow to have acquired a claim number, but it was not a claim form and it was not made in existing proceedings. It was not the right way to start contentious probate proceedings alleging (as Mr Chitolie apparently wishes to allege) the very serious offence of forgery of a will. Proceedings of that sort are specialised proceedings under CPR Part 49 and have since 15 October 2001 been regulated by CPR Part 57.

6.Mr Chitolie's irregular application came before Pumfrey J on 8 October. The executors were represented by counsel. Pumfrey J ordered:

`That the application be dismissed without prejudice to any properly constituted contentious probate proceedings [Mr Chitolie] might wish to bring concerning the estate of his deceased sister.'

7.Pumfrey J could not possibly have made any other order. There was no claim form, let along one complying with the special requirements for contentious probate proceedings.

8.Mr Chitolie applied for permission to appeal, but on 7 March 2002 Chadwick LJ dismissed his application. On 16 October 2001 Mr Chitolie applied to strike out the possession proceedings, stating in Part C of the application that the executors' claim was based on a bogus will. However, the will had been proved and Mr Chitolie had not (and, so far as I know, still has not) issued a claim form starting contentious probate proceedings under Part 57.

9.In due course an order for possession of 30 Girton Road was made against Mr Chitolie, and permission was given to enforce the warrant for possession. Those processes had various vicissitudes and have taken up a good deal of time in the Chancery Division (and some time in this court before Ward LJ on 1 March 2002) but they are not directly relevant to the main application, which relates (as I said at the beginning of this judgment) to what happened before Ferris J on 8 March 2002. The same is true of Mr Chitolie's efforts by applications in the Chancery Division to recover chattels of his which had been left at 30 Girton Road.

10.I have a transcript of the whole hearing before Ferris J. It is clear from the transcript that it is no coincidence that it occurred on the day after Chadwick LJ had refused permission to appeal from Pumfrey J. Mr Chitolie told Ferris J that he had what he called `a quick application' about 30 Girton Road. He said he had learned in the Court of Appeal that he had taken the wrong road but he had still not, as Ferris J repeatedly pointed out to him, commenced any properly constituted proceedings. He simply turned up in court without any written application and without notice to anyone, and asked for an order revoking the grant of probate.

11.The judge rightly said that the application was absolutely hopeless. He rightly refused permission to appeal."

10. On 30th May I refused permission to appeal because Mr Chitolie's main application, and the other applications that went with it, were, as Ferris J had said, hopeless. It would serve no useful purpose to reinstate those applications.
11. The next application is also concerned with Mr Chitolie's departure from 30 Girton Road. Mr Chitolie had moved some of his belongings into the house, including a photocopier and a printer and two toolboxes. He complained that on his eviction he was unable to recover these. On 11th March 2002 he made an application in the executors' possession proceedings, returnable on 15th March. On 14th March the executors' solicitors, C M Atif & Co of London SW17, wrote to the court asking to be excused attendance on the following day and stating that the executors had arranged for Mr Chitolie's possessions to be collected and placed in storage by what they referred as to a "professional third party". On 16th March Mr Prentice of Access Storage Solutions of West Norwood wrote to Mr Chitolie as follows:

"In regards to the move in to unit 2342 on the 14th March 2002. Mr J Chitolie" [I interpose that is another brother, Jonah] "arrived in the afternoon in what looked like a builders van.

Mr Chitolie moved into unit 2342 paid one month's rental and asked me to hold on to the keys until Mr D Chitolie came and removed his goods. The goods in black plastic bin liners and other electrical goods were removed from what looked like a builders van inside.

I held on to the keys until Saturday 16th March when I handed them over to Mr D Chitolie."

12. It does not appear from the court file what happened to Mr Chitolie's first application but on 19th March Mr Chitolie applied, not on notice, to Lloyd J.
13. The application was stood over twice, on 19th and 22nd March. On 26th March it came before Patten J, who ordered that the executors should by 9th April file and serve a written statement listing any items remaining at the house, and should place any such items in storage at Access Storage Solutions. That order was made in the presence of Mr Chitolie alone, although notice had been given to the executors' solicitors. Patten J stood over the matter to 11th April.
14. On 11th April the matter came before Lightman J. Only Mr Chitolie was present. The reason for the executor's absence and non-representation appears from a letter dated 11th April 2002 sent to the court by Mr Andrew Chitolie. It seems not to have been sent by fax, and it seems likely that it was not seen by Lightman J. I will read the whole letter except for some expressions about Mr Chitolie which are unduly colourful or of doubtful correctness:

"I request that this letter be used and my attendance excused.

Because of the considerable costs, stress, and damage to my working life caused by the ... actions of Dick Lucien Chitolie (DLC), I respectfully request that my attendance to court be excused.

The financial burden that has been placed on the family by his actions has thus far been enormous; as a consequence Atif & Co solicitors are no longer instructed to act on behalf of the family in matters relating to Dick Lucien Chitolie. The courts have been informed of this in previous correspondence.

Because documents have been going to the above solicitors, and not to me directly, I was only informed last night of his hearing.

In previous correspondence, I have clearly indicated that items belonging to DLC [were] removed from the property and placed into safe storage for him to collect. If he has in any other items he claims to belong to him, he can itemise them and I would ensure they are delivered to him.

I would like the courts to note that DLC had plenty of notice to vacate the property but deliberately chose to ignore them. He has also ... ignored every order that the court has made. ... .

I enclose with this letter an inventory of items that was placed into storage and a list of other items that may belong to him, which I can arrange to be delivered."

15. Lightman J made an order on 11th April standing the matter over to 22nd April. The order directed the executors to comply with the order which Patten J had made on 26th March. It also directed that the executors should attend the adjourned hearing. The order appears to have been sent by post to the executors at Mr Andrew Chitolie's address. It was not endorsed with a penal notice. It was an unusual order to make. As Rimer J said of it:

"I do not, with respect, fully understand the basis on which those orders were made. A respondent to an interim application is not usually under any obligation to serve evidence in answer to it, or to attend the hearing in person. If he chooses to ignore the application and let it run its course, that is up to him. The only question for the court will then be as to whether the applicant's unanswered evidence entitles him to the relief he wants. In the present case Mr Chitolie's evidence has not been answered, but the letters to which I have referred satisfy me that there is a practical solution to his endeavours to recover his property."

16. The letters to which Rimer J was referring were Mr Andrew Chitolie's letter of 11th April and another letter which Mr Andrew Chitolie delivered to the court in person on 22nd April. That letter was, Rimer J said, very critical of Mr Chitolie for abusing the process of the court.
17. So the matter was finally dealt with by Rimer J in a reserved judgment which he gave on 29th April 2002, after he had had the opportunity to study all the papers.
18. In his judgment he went through the facts with his usual care and clarity. He decided to make no order on the application, saying:

"Having recited some at least of the fairly considerable history of this matter, I come to the question of what, if any, order to make on Mr Chitolie's adjourned application. The order he wants me to make is to direct the delivery of keys to the house to him, so that he can go into it and collect his possessions. He says he would then return the keys.

I have no intention at all of ordering the giving of keys to Mr Chitolie. The claimants have already been put to more than enough trouble in obtaining possession from him, and I am not prepared to make any order which would permit him to set foot in the house again."

19. The judge did, however, make some sensible suggestions for resolving the matter without further litigation, and he indicated that if Mr Chitolie was determined to pursue what he believed to be his rights by further litigation, a separate claim in the county court would be the appropriate course. He added:

"As I say, the present action is for all practical purposes at an end, and it cannot simply be used as a vehicle for the making of claims by interim procedures, being claims, which if there is any justification for them at all, should be the subject of a separate action."

20. That was, it seem to me, an impeccable exercise of the judge's discretion. An appeal from that decision would be hopeless. I therefore refuse permission for an appeal from the order of Rimer J.
21. The last matter is an unless order which Master Venne made at a hearing in open court on 13th March 2002 in an application by Mr Chitolie for permission to appeal from an order of Lightman J made on 21st January 2002. That order was made in quite separate proceedings, an action by Mr Chitolie against two defendants, CMS Cameron McKenna and Berryman Lace Mawer. The application refused Mr Chitolie's application for a "true and corrected transcript" of an oral decision of Deputy Master Behrens made on 22nd October 2001.
22. Master Venne made clear to Mr Chitolie what was required. The transcript shows that the following exchanges took place in relation to the transcript of Lightman J's judgment. Mr Chitolie said:

"...that will be in with the bundle if I can get an extension of time. We are looking for a couple of weeks to sort out my affairs.

MASTER VENNE: Very well. You want a further 14 days, do you?

MR CHITOLIE: That will be good.

MASTER VENNE: I will give you another 14 days, Mr Chitolie, but I will also make an unless order, which, I think you are probably familiar with, which is to say that unless you file a bundle of documents which conforms with the court's requirements, including the provision of the transcript within 14 days, then your application will stand dismissed without further order, but with no order as to costs.

MR CHITOLIE: That is fair enough."

23. The application has been struck out for non-compliance with the unless order. Mr Chitolie's application to reinstate his application for permission to appeal contends that Mr Venne had no jurisdiction to make the order. That contention is quite misconceived: see CPR 52.16.
24. Mr Chitolie has not appeared this morning to put forward any other explanation or reason for being given further indulgence after his non-compliance with the unless order. In those circumstances, this application also is dismissed.
Order: Application dismissed