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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Swansea City & County Director Of Housing/Finance v Oben [2002] EWCA Civ 1339 (3 July 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1339.html
Cite as: [2002] EWCA Civ 1339
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SWANSEA COUNTY COURT
(His Honour Judge Hickinbottom)
Strand London WC2 Wednesday, 3rd July 2002 |
||
B e f o r e :
____________________
| DIRECTOR OF HOUSING/FINANCE | ||
| CITY AND COUNTY OF SWANSEA | ||
| Claimant/Respondent | ||
| -v- | ||
| JACOB MBU OBEN | ||
| Defendant/Applicant |
____________________
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent Claimant did not appear and was not represented.
____________________
Crown Copyright ©
- LORD JUSTICE WARD: This is an application for permission to appeal against an order made by His Honour Judge Hickinbottom in the Swansea County Court on 30th April 2002. By that order the judge dismissed the applicant's application to appeal against the earlier order made by District Judge Lewis on 5th March 2002. On 5th March District Judge Lewis dismissed the applicant's application for an order suspending the execution of the order for possession which had been made on 13th August 2001 by District Judge Evans. At the time of the order for possession there was some £3,500 of rent outstanding. By the time the matter came before the judge that had grown significantly because little had been paid off the arrears.
- This is an unhappy case because, as I understand it, the order for possession has already been enforced and the applicant, Mr Oben, has been evicted from his home. He may even be having difficulty in obtaining the return of his belongings; and I hope that the local authority will be sympathetic to him in recovering his possessions.
- The applicant made a further application on 17th May, possibly to invite the judge to review his April decision or perhaps to grant a further extension of time. The order was simply that the Council would not enforce the warrant of possession before 23rd May but, as I have said, that order has in fact been enforced, either at that time or subsequently.
- Mr Oben faces the difficulty that this is a second appeal and he needs, therefore, to establish some important point of practice or principle or to show some other compelling reason why the Court of Appeal should entertain the application. He has made his submissions very courteously and I am indebted to him. He has put in a long skeleton argument of many pages, which I have borne in mind, although I will not refer to all of it in this judgment.
- One of the grounds of complaint was that the judge - indeed, I think, all the judges who dealt with this matter - had shown racial bias towards Mr Oben. I can see no evidence of that at all in the papers and, indeed, Mr Oben did not press that point before me today. His main argument is that in February he made an approach, of his own initiative and not under the compulsion of any order of the court, to arrange with the Housing Department for the discharge of the arrears that had arisen. He tells me that he made an offer to pay the current rent of some £47-odd a week plus £4 a week off the arrears and that, after taking time to consider the matter, the Housing Department accepted that offer. So from February he has, by means of a standing order, been discharging the arrears at £4 a week. His submission is that that arrangement constitutes a contract; that there was an offer and acceptance of a new tenancy on new terms. That is the linchpin of his submission to me today. He adds further to it that it is important that the contract was made out of court and without any direction by the court, and it is therefore to be distinguished from an offer to discharge the arrears which is actually made in court.
- I regret that I simply cannot accept that argument. Here was a judgment for possession: that was one part of the order made in August 2001. Another part of that order was that there be judgment for the Housing Department for the £3,500-odd arrears; and further arrears have accrued. The offer, therefore, to accept £4 per week is an offer to accept that sum in discharge of a judgment debt. The relationship between the parties is of judgment creditor and judgment debtor, dealing with that element of that August order. It was not (and was clearly not intended by the local authority to be) in effect a discharge of the order for possession and the grant of a whole new tenancy. They were not waiving the order that they had. They were not agreeing to grant a new tenancy. They were doing no more than accepting an offer to discharge a judgment debt. I therefore reject the fundamental submission of the respondent.
- He submits that section 85 of the Housing Act is designed to protect tenants and ensure that they do not lose their homes. He is right insofar as it does confer a discretion on the court to suspend an order for possession; and the judge himself recognised that to order possession is a very strong thing to do, and that the court should look carefully at offers to pay off the arrears and to exercise the power to suspend where appropriate. Mr Oben points to the fact that he voluntarily set up this arrangement; that he was indicating a willingness to pay the £4 a week, together with anything more he could afford to pay as his position improved. He also points to the fact that he has since increased that sum to £8 a week, again voluntarily. He submits that, when he is qualified and in full gainful employment, he will be able further to erode the large arrears outstanding, which at £4 a week would take years and years to discharge.
- The difficulty in the case for me and for Mr Oben is to establish that point of principle or practice. I do not see that there is any point of principle or practice, and the argument central to the applicant's case proceeds on a completely false basis. Insofar as the judge exercised his discretion, this court would not normally interfere with that unless it is shown to be seriously wrong, and I can see no error in his approach. The court must allow a generous ambit within which there may be reasonable disagreement in the exercise of discretion. Here the judge, in my view, placed no undue weight on any factor, weighed all the factors properly in the balance and came to a conclusion with which this court could not possibly interfere.
- As I say, the fatal point for the application is that it raises no point of practice or of principle. Under the new law this court has a very limited jurisdiction. Although I am hugely sympathetic to Mr Oben, who has lost his home, and would wish to help him if I could (as I think that Judge Hickinbottom would have wanted to help him if he could), there is, unfortunately, no possible way in which I could grant permission. I am afraid events have run their course and Mr Oben must now pick up the threads of his life as best he can. In that I wish him good fortune. But the application, sadly, must be dismissed.