Oladipo Opanubi (as Interim Administrator of the Estate of the Late Chief Jacob Adewunmi Adeboye, Deceased) v (1) Thomas Paul Daley (2) Janet Picton James and Others
Jurisdiction | England & Wales |
Judge | Mr Justice Patten |
Judgment Date | 26 July 2002 |
Neutral Citation | [2002] EWHC 1596 (Ch) |
Court | Chancery Division |
Docket Number | Case Nos: CC/2002/APP/236, CC/2002/PTA/237, |
Date | 26 July 2002 |
[2002] EWHC 1596 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION.
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Patten
Case Nos: CC/2002/APP/236, CC/2002/PTA/237,
CC/2002/APP/327 & CC/2002/APP/401
Mr Stewart Smith (instructed by Bennett Welch & Co for the claimant)
Mr Poorun (acting as McKenzie Friend for the defendants)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
The Hon Mr Justice Patten
Mr Justice Patten
This is an appeal by two of the defendants to these proceedings, Janet Picton James and Michael Elwyn Wiseman, against the order of Mr Recorder Doggett dated 21 February 2002 (as subsequently amended on 15 March 2002) which was made at the conclusion of the trial of the action. There is also an appeal brought against the same order by the first named defendant, Thomas Paul Daley, but unfortunately due to Mr Daley's illness it has not been possible to hear his appeal at the same time. Hopefully my decision in the appeals before me will render any further hearing unnecessary.
The proceedings in question and the order under appeal relate to a freehold property known as 167 Gypsy Road, West Norwood, London SE27 ("the Property"), which was registered at HM Land Registry in the name of the late Chief Adewunmi Adeboye, who died on 23 August 1987. The claimant, who is the respondent to this appeal, Mr Oladipo Opanubi, sues as the interim administrator ad colligenda bona of the estate of Chief Adeboye pursuant to a grant made in the Ipswich District Probate Registry of the High Court on 28 June 1999. The claim form was issued under CPR Part 8 on 11 January 2000 seeking a summary order for possession of the Property against the defendants, who were then joined to the proceedings as persons unknown. Subsequently the defendants were identified by name and pursuant to the order of His Honour Judge Cox of 15 February 2000 particulars of claim were served, again asserting a right to possession in respect of the Property. In paragraph 2 of the particulars of claim the claimant alleged that the defendants were believed to be in occupation of the Property without the licence or consent of Chief Adeboye or his predecessors in title and to be trespassers. Defences were then served by each of the defendants on 5 April 2000, admitting the capacity and therefore the title of the claimant to sue, but denying his entitlement to possession. Each defence contains a precise statement of the origin of that defendant's right to possession. Mr Daley alleged that he was in exclusive possession of his own room at the rear of the lower ground floor of the Property, together with shared use of the kitchen and bathroom, pursuant to an oral tenancy granted to him by a Mr Andresier in 1986 at a rent of £28 per week. He occupied this part of the Property until about 1988, when he left, and returned to occupy the same premises in 1991. His defence goes on to allege that the tenancy granted by Mr Andresier was either a protected tenancy pursuant to section 22 of the Rent Act 1977 or an assured tenancy and that, having been granted by Mr Andresier as the agent for Chief Adeboye or his estate, the claimant was bound by it. In the alternative, on the basis that Mr Andresier did not act as the agent for Chief Adeboye or his estate, Mr Daley in conjunction with the other defendants alleged that they had for 12 years prior to the issue of the proceedings been in adverse possession of the Property and that in those circumstances the claimant holds the premises on trust for the defendants pursuant to section 75 of the Land Registration Act 1925.
The defences of the other three defendants take a similar form. In the case of Miss James the allegation is that she has been in exclusive possession of a room on the top floor of the Property since about 1988 under an oral tenancy again granted by Mr Andresier at a rent of £37.50 per week. In common with the other alleged tenancies, she was granted the shared use of the kitchen and bathroom. Mr Wiseman occupies the other room on the top floor of the Property and according to his defence has done so since about the end of 1987 pursuant to an oral tenancy at a rent of £37.50 per week. Once again this includes the shared use of the kitchen and bathroom. Mr Reynolds occupies a room at the rear of the ground floor of the Property, which according to his defence was the subject of a tenancy granted to him in about 1985 at a rent of £35 per week. He also has the shared use of the kitchen and bathroom. As in the case of Mr Daley, each of the other three tenancies is said to be protected under the provisions of the Rent Act 1977. Miss James, Mr Wiseman and Mr Reynolds also sought, in the alternative, a declaration that together with Mr Daley they were entitled to the freehold of the Property as a whole, by virtue of the operation of the provisions of the Limitation Act 1980. On 20 April 2000 the claimant served a reply admitting the alleged relationship of agency between Mr Andresier and Chief Adeboye, and Mr Andresier's authority to grant tenancies in respect of the Property. In paragraph 2 of the reply the claimant also admitted the existence of the tenancies alleged by the defendants. On that basis the claim to a title by adverse possession was denied.
The trial of the action took a prolonged and unusual course. There were three separate hearings before the order of 21 February 2002 came to be made. The first such hearing took place between 26 and 28 March 2001, at which the recorder heard evidence from all four defendants and from Ms Katherine O'Keefe, an assistant solicitor in the employ of Messrs Bennett Welch & Co, the claimant's solicitors. The primary purpose of her evidence was to produce a witness summary based on an interview she had conducted with Mr Andresier. By this time Mr Andresier was elderly, partially blind and in poor health. He was not willing to give evidence in person, and in fact he died before the trial took place. The recorder admitted the summary in evidence and I shall refer to it again later in this judgment. At the hearing on 26 March Mr Wiseman and Mr Reynolds were represented by counsel. Mr Daley and Miss James appeared in person.
Each of the witness statements of the four defendants is comparatively brief. Mr Daley's statement does no more than to confirm that he moved into the Property in July 1986 and rented his room at £28 per week from Mr Andresier, whom he knew as Mr Andrews. Miss James also confirms the terms of her tenancy in her witness statement. She goes on to say that although the Property was in reasonable repair when she took possession in July 1988, it subsequently deteriorated and by 1993 major repairs were necessary. The tenants confronted Mr Andresier about this and he agreed to contact the owner, whom he said was a lady living in Africa. In the event he did nothing further in relation to the Property and ceased to collect any rents after November 1993. Thereafter, Miss James said, the tenants used the money they might otherwise have paid as rent to repair and redecorate the Property and to improve the garden. I was shown photographs to confirm what they have done.
Mr Wiseman also confirmed the details of his tenancy contained in his defence. He said in his witness statement that Mr Andresier (whom again he referred to as Mr Andrews) never said that he was Chief Adeboye's agent and Mr Wiseman and the other tenants always treated him as their landlord. Mr Wiseman's statement also contains references to being told by a Mr Anon Ford (who occupied a room in the house in about 1993) that Mr Andresier"was not legal", by which Mr Wiseman
understood him to mean that Mr Andresier was collecting the rent for himself. This is said to have been confirmed by Mr Andresier's wife. Mr Reynolds says in his witness statement that he made his tenancy agreement in July 1985 with Mr Andresier, whom he thought was the owner. He also confirms the evidence given by Miss James about the need for repairs in 1993 and the work subsequently carried out to the Property.
In his judgment dated 30 March 2001 the recorder made a number of findings of fact which are not challenged on this appeal. He accepted the evidence of the creation of the tenancies set out in the defendants' witness statements. He also accepted that the tenants dealt with Mr Andresier on the assumption that he was the owner of the house and that misapprehension was not corrected by him. In relation to Mr Andresier, the recorder found that he acted as the agent of Chief Adeboye until his death in August 1987 and that thereafter he continued to manage the Property (including by granting tenancies) and to collect the rents for the benefit of Mrs Adeboye, who contacted him following her husband's death. Mr Andresier paid the rents to her until 1993 in the belief that she was the only beneficiary of Chief Adeboye's estate.
Of these findings of fact, only those relating to the position after August 1987 are challenged by the Defendants. The recorder's findings in relation to Mr Andresier are based almost exclusively on the witness summary I have already referred to. That confirms that Mr Andresier acted as the Chief's agent from about 1984. He was responsible for letting out the rooms in the Property and he seems to have been given a virtually free hand in the choice of tenants. Mr Andresier told Ms O'Keefe that he learnt of Chief Adeboye's death not too long after it occurred, when Mrs Adeboye...
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