THE LORD MAYOR & CITIZENS OF THE CITY OF WESTMINSTER v MAHMOOD SALAMA [2001] EWCA Civ 1902

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE EDIE)
[2001] EWCA Civ 1902Case No A2/001/2193Venue Royal Courts of Justice, Strand, London WC2, Monday, 5th December 2001
Between
THE LORD MAYOR & CITIZENS OF THE CITY OF WESTMINSTERClaimant/RespondentMAHMOOD SALAMADefendant/Appellant
Before
Lord Justice SchiemannThe Applicant appeared in personThe Defendant did not attend and was unrepresentedDate 5 December 2001
[1]Monday, 10th December 2001 LORD JUSTICE SCHIEMANN: This is an application for permission to appeal an order of Eady J on 4th July 2001. By that order the judge granted the appeal of the respondent, Westminster Council, against an order of Master Eyre, which was dated 26th April 2001. It related to a property at No.97 Keats House, London SW1. The order made by the judge ends with these words:
"... and it is ordered that the claimant [Westminister] be entitled to possession of the property known as 97 Keats House forthwith."
[2]Mr Salama makes the point, very fairly, that the judge had indicated that he should be allowed to stay there for 28 days. The order gives no impression on its face that he has 28 days in which to do so.[3]The background to the matter is this. Because of this confusion he appeared before Eady J again on 11th October 2001 and that judge pointed out that the original order had not been drawn up until 9th August 2001, which was more than 28 days after its making, and therefore, despite the word "forthwith" on the order it was perfectly adequate in his view. That is the matter which Mr Salama wants to challenge.[4]Formally this application is a second appeal and therefore under the rule the Court of Appeal can only deal with it if it raises an important point of practice or principle or there is some other compelling reason why the Court of Appeal should hear it.[5]The background position in relation to Mr Salama is this. It seems that he was the tenant of a different property in the same block called 86 Keats House. He has a tenancy agreement with Westminster dated 28th January 2000. That agreement is in his sole name. It seems that Miss Mando, and a son whom Mr Salama and Miss Mando had together, are shown as other persons who live in the property.[6]What happened thereafter, according to Mr Salama in any event, is this. On 24th May 2000 Westminster, without his consent, inserted Miss Mando as a joint tenant in the tenancy agreement. Thereafter Miss Mando threatened to report Mr Salama for assault and he was forced to leave the flat, and I think is, at the moment, the subject of an order from the Family Division which effectively keeps him out of his own flat. He of course wanted somewhere to live and so he moved into the flat of a friend of his, a Miss Karva, who lived in No.97. Miss Karva unfortunately died. Westminster then served a notice to quit on her personal representatives, but Mr Salama stayed in No.97 of which he was not, and I do not think claims to be, a tenant, because he is in this unfortunate position that he cannot go back to Flat 86 because of the court order, and Westminster, he says, will not rehouse him.[7]The difficulty in this case really arise out of the fact that in relation to Flat 97 Mr Salama, subject to one matter which I am about to mention, has no claim whatever. Whatever claim he has is in relation to the other flat. This was the way that Eady J approached it. He said the issues relating to Flat No.86 were irrelevant and so far as Flat No.97 was concerned Westminster was manifestly entitled to possession. Under our law the judge had no power to suspend possession without Westminster's consent, but Eady J was clearly sympathetic to Mr Salama and his problems and so he wanted to make sure that he had at least 28 days in which to sort out his problem with Westminster as best he could. So the judge did order that his order should not be drawn up for 28 days; and he encouraged Westminster to offer some sort of constructive solution. According to Mr Salama, Westminster has not been helpful to him and he has not been able to see them. What has happened instead is that on 11th October eventually he was evicted from the premises at No.97 and the unfortunate Mr Salama is now on the streets.[8]His proposed grounds of appeal are largely concerned with the fact that Eady J's order of 4th July did not accurately reflect the judge's intention on its face that it was not to be drawn up for 28 days. That is true, but in fact it was not sealed by the court until 9th August 2001. By that stage 28 days had elapsed and it was undoubtedly the judge's intention that Mr Salama should leave No.97 Keats House to which he had no legal right.[9]In those circumstances it seems to me that the complaints in relation to the order have no present validity and provide no present reason why permission to appeal should be given in relation to No.97.[10]There is, however, a second argument which is different and which is one with which Eady J in any event on 4th July could not deal with, and so far as I can see on 11th October did not deal with because he does not seem to have been asked to do so. But it is right to say that the transcript is extremely poor and so I have thought it right to investigate the matter with Mr Salama.[11]The point is this. He says in his notice of appeal that Westminster had on 30th July issued him with a rent payment card and has received payment from him as rent and in those circumstances has consented to his continuing occupation of No.97. I think if he were a lawyer the way he would put the matter would be to say that a tenancy has been created of No.97. He has shown me a document which is headed "Rent Payment Card". That undoubtedly appears to have been issued to him on 30th July 2001 by Westminster. He has shown me a standard document headed "Swipe Card For Rent Payment", which says:
"Please find enclosed a swipe card calender and wallet. This card can be used to make rent payments at any of the Westminster one stops."
[12]That document is headed "97 Keats House. The swipe card was issued after the order of 4th July." The document on its face refers purely to rent payments. On 15th September Mr Salama received a standard letter which I do not think carries the matter much further.[13]On 1st October he received yet another letter from Westminster which says this in relation to 97 Keats House. It is again a standard form letter:
"I attach a housing charge slip which shows the details of the current charges for your property and the date from which it is effective. If you are in default of a court order for possession please note that this card refers to charges to which the Council is entitled instead of rent. Neither this letter nor the payment of any charges creates a new tenancy or removes any right the Council has to enforce any order."
[14]If such a letter had been written at the same time as he was given the rent payment card it would have made the situation perfectly clear to him. However, as it seems to me having merely heard his side of the matter, it is conceivable that the Council has by its first letter of 30th July created a tenancy of No.97. I do not say it is so; but it appears to be possible, notwithstanding the case of Vaughan Armatrading v Sarsah [1995] 27 HLR 631.[15]It seems to me that the matter is one of urgency and therefore I am going to adjourn this application until 10.00am on Thursday of this week. I shall reserve it to myself. I shall ask that Westminster City Council to appear here to explain their attitude, and whether they resist permission being granted. (Application adjourned; no order for costs; transcript of judgment to be supplied to applicant and Westminster Council at public expense).

Cited in 1 later judgment