The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 44 of 1995

 

(1) Selwyn Bibby and

(2) Kennedy Cornwall Appellants

v.

(1) Sumintra Partap

(2) Myrtle Partap and

(3) Angela Partap Respondents

 

FROM

 

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

 

---------------

REASONS FOR DECISION OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 25TH APRIL 1996, Delivered the

20th May 1996

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Present at the hearing:-

Lord Keith of Kinkel

Lord Jauncey of Tullichettle

Lord Nicholls of Birkenhead

Lord Steyn

Sir Ralph Gibson

  ·[Delivered by Lord Nicholls of Birkenhead]

 

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This appeal raises the question whether, pending the hearing of an appeal, the Court of Appeal has jurisdiction to stay the execution of a possession order made summarily by a judge under Order 94 of the Rules of the Supreme Court of Trinidad and Tobago.  This order corresponds, in all respects material for the purposes of this appeal, to Order 113 of the (English) Rules of the Supreme Court.

 

1. On 29th January 1992 the plaintiffs issued a summons under Order 94 seeking orders for possession of land said to form part of Belle Vue Estate, South Oropouche, Trinidad.  There were several defendants, but this appeal concerns only two of them: Kennedy Cornwall and Selwyn Bibby. Each of these two defendants lives  in  a modest  wooden structure or shack. Apparently each has lived there since at least 1984.  In answer to the plaintiffs' evidence that the land belongs to them, these defendants did not claim any title to the land.  Their defence consisted essentially of a claim that the property where they live was not part of the Belle Vue Estate, and that the documentary title produced by the plaintiffs was defective.

 

2. On 25th November 1993 Anthony Lucky J. made possession orders.  He stayed execution for 28 days.  Subsequently the defendants applied to the Court of Appeal for leave to appeal and also for a continuation of the stay pending the hearing of the appeal.  The two applications were adjourned on several occasions, with the plaintiffs undertaking not to enforce the possession orders meanwhile.  On 16th May 1994 the applications came before the Full Court, comprising S. Sharma, Z. Hosein and J. Permanand JJ.A.  By consent the defendants were given leave to appeal against the possession orders made by the judge.  The defendants thereupon filed notice of appeal.  On 30th May, after hearing further argument, the court dismissed the application for a stay of the possession orders, holding that it had no jurisdiction to make the order sought.  On 27th July their Lordships' Board granted the defendants special leave to appeal as poor persons against this decision, and stayed execution of the possession orders pending determination of the appeal. 

 

3. Their Lordships' Board heard the appeal on 25th April 1996.  The plaintiffs did not appear.  At the conclusion of the hearing their Lordships announced they would allow the appeal and continue the stay of execution of the possession orders until the determination by the Court of Appeal of the defendants' appeal against Lucky J.'s order.  Their Lordships now give their reasons and direct that the respondents must pay the appellants their costs before their Lordships' Board on the poor persons' scale.

 

4. Under English law a court of first instance which grants relief, whether interlocutory or final, has an inherent power to suspend ("stay") its order until an appeal or would-be appeal to the Court of Appeal is disposed of.  The Court of Appeal has a like jurisdiction. The existence of these parallel jurisdictions is assumed, and thereby confirmed, by RSC Order 59 rule 13 (1):-

"Except so far as the court below or the Court of Appeal or a single judge [of the Court of Appeal] may otherwise direct...an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below."  (emphasis added)

 

5. In the ordinary course an application for a stay should be made to the court of first instance.  It is obviously convenient, and it is the usual  practice, for  the  application to  be made to the judge whose

decision is sought to be appealed, and for the application to be made at the time judgment is given.  If the judge refuses a stay as asked, or imposes unacceptable terms, the appellant or would-be appellant may renew his application to the Court of Appeal: see Cropper v. Smith (1883) 24 Ch D 305.  This is in accordance with RSC Order 59, rule 14(4):-

"Wherever under these rules an application may be made either to the court below or to the Court of Appeal, it shall not be made in the first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticable to apply to the court below."

 

6. These general principles are well established, and are as much applicable to possession orders, and to possession orders made under RSC Order 113, as other orders. These principles are subject to contrary provision in any statute or rule.  Order 113 contains no express contrary provision, nor is a contrary provision implicit.  Justice may require that a possession order made under Order 113 should be stayed pending the hearing of an appeal.  Order 113 is intended to provide a summary and speedy remedy.  But this does not negative the need for the court to have a discretionary power to stay the carrying out of a possession order in suitable cases while an appeal is pending.

 

7. With one possible exception, in relation to appeals to the Court of Appeal from the High Court the relevant rules and principles in Trinidad are substantially the same as in England: see section 37(1) of the Supreme Court of Judicature Act (C4:01).  In particular, Order 59 rule 22(1) of the Rules of the Supreme Court of Trinidad and Tobago provides:-

"An appeal shall not operate as a stay of execution or of proceedings under the judgment or order appealed from, except so far as the Court below or the judge thereof may have ordered or the Court [of Appeal] may order ..."

 

8. This corresponds to the English RSC Order 59 rule 13.  And the Trinidad Order 59 rule 20 empowers a single judge of the Court of Appeal, in any case pending before that court, to make orders for "a stay of execution on any judgment or order appealed from pending the determination of such appeal".  It follows that their Lordships respectfully agree with the decision of Ibrahim JA, given on 25th October 1991 in Leiba v. Brizan (Mag. App. no. 264 of 1991), that pending an appeal the Court of Appeal has jurisdiction to stay execution of a possession order made by the magistrate. 

 

 

9. The one possible exception concerns the jurisdiction of the court of first instance itself to stay execution of its order pending an appeal.  Section 32(2)(j) of the Judicature Ordinance provided that the Full Court should have "exclusive" jurisdiction to hear and determine applications for a stay of execution on any judgment, order, or decision appealed from pending determination of such appeal.  On its face this seems inconsistent with the court below having any such jurisdiction, as envisaged by Order 59, rule 22(1). This point does not call for decision on this appeal, and their Lordships say nothing further about it.

 

10. How, then, did the Court of Appeal reach its conclusion that it had no jurisdiction to stay Lucky J.'s possession orders pending an appeal?  The court did not give a reasoned judgment, but from observations made during the course of the hearing it seems that the court was led astray by a note to RSC Order 113 which has appeared for some years in The Supreme Court Practice.  The note, under the rubric "Making of order for possession" and currently to be found in the 1995 Supreme Court Practice with the marginal reference 113/1-8/9, Vol. 1 page 1625, reads:-

"The Court has no power to suspend an order for possession against trespassers, unless the owner consents".

 

11. Three authorities are cited in support of this proposition: Department of the Environment v. James [1972] 1 W.L.R. 1279, McPhail v. Persons, Names Unknown [1973] Ch. 447, and Swordheath Properties Ltd. v. Floydd [1978] 1 W.L.R. 550.  In the first of these cases Goulding J. held that, as against a person who was simply a trespasser, a plaintiff who proves his title is entitled to an immediate order for possession and neither the courts of common law nor the courts of equity had or have any discretion to delay him.  This principle was upheld by the Court of Appeal in McPhail v. Persons, Names Unknown [1973] Ch. 447.  In the third case, Swordheath Properties Ltd. v. Floydd [1978] 1 W.L.R. 550, the same approach was applied to orders for the recovery of possession in the County Court.

 

12. That principle, and its correctness, are not in point in the present case.  That principle is concerned with whether, regardless of any ground for appeal, the court has power to postpone the date on which the lawful owner may recover possession from a person who has unlawfully entered his land and remained there as a squatter.  Those cases were not concerned with what are the court's powers if, a possession order having been made, a defendant seeks to appeal with a view to having the order set aside.  Those cases do not bear upon the powers of the court in this situation.  (Indeed, it is interesting to note that in the McPhail case, the Court of Appeal stayed execution of the judge's order pending the hearing of the appeal: see page 449C.)

 

13. The manner in which the court's discretion should be exercised in the present case admits of no doubt.  The defendants are of little financial means.  The plaintiffs have known ever since 1984 that the defendants were living in the property from which they are now sought to be ejected.  The defendants have nowhere else to live. The plaintiffs consented to the defendants having leave to appeal.  This must mean that, implicitly, the plaintiffs accepted there was an arguable ground of appeal.  Otherwise their consent would make no sense.  This being so, the fairest and most sensible course is that the defendants should remain where they are until the Court of Appeal adjudicates upon their appeal.

 

 

© CROWN COPYRIGHT as at the date of judgment.