Sikiru Lawal and Another v Circle 33 Housing Trust
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton,Lord Justice Patten,Lady Justice Gloster |
| Judgment Date | 24 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1514 |
| Docket Number | Case No: B5/2014/1341 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 November 2014 |
[2014] EWCA Civ 1514
THE CHANCELLOR OF THE HIGH COURT
Lord Justice Patten
and
Lady Justice Gloster
Case No: B5/2014/1341
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CLERKENWELL & SHOREDITCH COUNTY COURT
HHJ JOHN MITCHELL/HHJ MAY QC
Claim No. 2EC00023
Royal Courts of Justice
Strand, London, WC2A 2LL
Jan Luba QC and Ms Catherine O'Donnell (instructed by Shelter Legal Services) for the Appellants
Jon Holbrook (instructed by Devonshires) for the Respondent
Hearing dates: 28 th October 2014
THE CHANCELLOR ( Sir Terence Etherton)
The appellants, Sikiru Lawal ("Mr Lawal") and his daughter Joyce Lawal (known as "Jaicee"), wish to challenge (1) the order for possession of their home, 1 Ashbrook Road, London N19 3DF ("the Property"), made by Her Honour Judge May QC on 25 July 2013 in the Central London County Court, and (2) the order of His Honour Judge Mitchell on 24 March 2014 dismissing the application of the appellants to set aside the order for possession and preventing or suspending execution of the warrant for possession of the Property. Their challenge is on the ground that the order for possession and the warrant are disproportionate and so infringe their rights under Article 8 of the European Convention on Human Rights ("the Convention").
The background facts
Mr. Lawal is currently aged 76 and of Nigerian origin. He came to the UK in 1961 and married in 1964. In 1974 Mr. and Mrs. Lawal were granted a joint tenancy of the Property by the Holloway Tenant Co-operative ("HTC"). The Property is on three floors and comprises four bedrooms, two living rooms, a kitchen, a bathroom with lavatory, and another lavatory. In due course the tenancy became a secure tenancy under the Housing Act 1985 ("the 1985 Act"). In 1998 HTC ceased to be a co-operative and became a registered non-charitable housing association. HTC remained the landlord of the Property until 4 August 2005 when it sold the freehold to the respondent Circle 33 Housing Trust ("Circle 33").
Mr and Mrs Lawal's six children were raised in the Property. Between 1976 and about 1981 Mr. Lawal was away from London a good deal for his work with British Rail. From the time of his father's death in 1981 Mr. Lawal spent most of his time in Nigeria, with the intention of finding and exploiting business opportunities there. Mrs Lawal and the couple's children continued living in the Property. Mr. Lawal kept in touch with his wife and children by telephone calls each week and making brief visits to them in the UK. Whenever he returned to the UK Mr Lawal lived at the Property.
Mrs Lawal died in 2002. In the years following her death Mr. Lawal spent even less time in the UK. Jaicee spent significant amounts of time at the Property while living elsewhere and then returned to live at the Property in 2010. She and Mr Lawal are the only persons now living there.
Circle 33 served a notice to quit to Mr. Lawal on 25 May 2011, which expired on 26 June 2011. Although Mr. Lawal was occupying the Property at the time of the notice to quit, Circle 33 considered that he was not occupying it as his "only or principal home" for the purposes of sections 79(1) and 81 of the 1985 Act, and that he had therefore lost his status as a secure tenant.
The possession action
On 4 January 2012 Circle 33 commenced the present proceedings in the Central London County Court against Mr. Lawal, Jaicee, her sister Samantha and the estate of Mrs Lawal. For various reasons which it is not necessary to state, by the time of the trial Samantha and the estate of Mrs. Lawal had ceased to be active parties.
So far as relevant to this judgment, Circle 33 claimed possession on the following three alternative grounds in its amended particulars of claim: (1) the tenancy had been surrendered by Mr. Lawal; (2) the tenancy was not secure and was terminated by the notice to quit because Mr Lawal did not occupy the Property at the date of the notice to quit as his only or principal home and so failed to satisfy "the tenant condition" in sections 79(1) and 81 of the 1985 Act (viz. that he occupied the Property as his only or principal home); (3) possession should be ordered for breach of the terms of the tenancy.
Mr Lawal and Jaicee served a joint defence. In it Jaicee acknowledged that she occupied as a licensee of her father and stated that she did not assert any independent rights of occupation. So far as relevant to this judgment, Mr Lawal (1) asserted that he had never surrendered his secure tenancy, (2) denied that the notice to quit was effective, (3) asserted that his secure tenancy subsisted because he had at all material times occupied the Property as his only home and, in particular, at the date of expiry of the notice to quit, and (4) denied breaches of his tenancy.
Judge May's decision
The trial took place before Judge May on 23, 24 and 25 July 2013. The appellants, who gave oral evidence, represented themselves. Circle 33 was represented by counsel, Mr. Jon Holbrook, who also appeared before us. At the trial the principal focus was on the first two grounds of possession put forward by Circle 33: surrender and termination by notice to quit.
Circle 33 argued that Mr. Lawal had surrendered his tenancy in January 2003 when, following Mrs. Lawal's death, Jaicee and Samantha signed an agreement to succeed to the tenancy. They subsequently behaved as tenants would, by paying the rent and applying to purchase the Property in March 2003, an application which was eventually not pursued. Judge May rejected the surrender allegation. She found that Mr. Lawal had remained the sole tenant of the Property throughout but that he had left the administration of the Property in the hands of his daughters while he was away in Nigeria.
On the issue whether Mr. Lawal had been occupying the Property as his "only or principal home" within the meaning of section 81 of the 1985 Act, Judge May had regard particularly to the following matters: (1) Mr. Lawal's evidence that he went "home" to Nigeria to seek work in 1981 after his father's death and from then until 2002 was living and pursuing work opportunities in Nigeria, making brief visits back to see his family; (2) the statement in a letter dated 10 January 2003, apparently bearing Mr Lawal's signature, recording that he had been living up to then in Nigeria; (3) Mr Lawal's evidence that, after his wife's death, he had "increased" the amount of time he spent in Nigeria; (4) the fact that in the 70 months before the expiry of the notice to quit Mr. Lawal had spent just seven months in the UK, for no more than one and a half months at a time; and (5) Mr. Lawal's daughters had assumed responsibility for the Property for eight years prior to the notice to quit conducting themselves as the tenants, paying rent and applying to exercise a "right to buy" in their names. Judge May also found that Mr Lawal intended to return promptly to Nigeria after July 2011 but he then stayed in London only because the possession proceedings had been issued.
Taking into account those matters and all the other evidence, Judge May concluded that the Property was not Mr Lawal's only or principal home in July 2011 and had not been for some considerable time before that. Mr Lawal had, therefore, ceased to satisfy the tenant condition in sections 79 and 81 of the 1985 Act and, accordingly, he had lost his status as a secure tenant. It followed that Circle 33 had validly terminated the tenancy by serving the notice to quit and was entitled to possession.
In Jaicee's oral closing submissions for herself and her father, the appellants had for the first time advanced a defence under Article 8 of the Convention but Judge May did not make any reference to that defence in her judgment.
At the end of the trial on 25 July 2013 Judge May ordered possession of the Property on or before 5 September 2013.
The appeal from Judge May's order
On 16 August 2013 the appellants, still acting in person, filed a notice of appeal from Judge May's order, in which they sought permission to appeal on a number of grounds. The only ground relevant to this appeal was as follows:
"When Proportionality within the meaning of article 8 was put forward, Judge May QC failed to consider the ruling of the Supreme Court, in the case that under the European Convention on Human Rights a court must assess the 'proportionality' i.e. a tenant's circumstances before making a possession order. No mention was made about the fact that [an] order for possession would leave Mr. Lawal homeless, as though the onus was on him to prove [the Property] is his sole and principal home, no evidence was brought at all by the Claimant that he had another home in the UK or overseas".
Permission was refused on the papers by Sir Stanley Burnton. The appellants requested that permission be reconsidered at an oral hearing. On 12 November 2013 Arden LJ heard the application. Jaicee appeared in person and on her father's behalf. Arden LJ dismissed the renewed application but made the following observations in respect of the Article 8 defence:
"16. I am bound to say that there must be a correlation between any right to respect for home and the judge's finding that the home at Ashbrook House was not a principal home. In favour of Article 8 is, of course, the point that Mr. Lawal has lived in the property for some 39 years and is now 76; in other words, a long-time connection with the property. But as against that, of course, it has to be said that the judge had found...
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