Sunrose Ltd v Othneil Martin and Felix Mitchell

• Jurisdiction: Jamaica
• Judge: BROOKS, J.
• Judgment Date: 25 April 2008
• Judgment citation (vLex): [2008] 4 JJC 2504
• Docket Number: CLAIM NO. C.L. S. 195 of 2001
• Court: Supreme Court (Jamaica)
• Date: 25 April 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN CIVIL DIVISION

CLAIM NO. C.L. S. 195 of 2001

BETWEEN

SUNROSE LIMITED

CLAIMANT

AND

OTHNEIL MARTIN

1 ^ST DEFENDANT

AND

FELIX MITCHELL

2 ^ND DEFENDANT

^st

^nd

Execution - Writ of Possession - Whether Bailiff liable for any loss occurring during execution - Whether Bailiff the agent of the owner of the land

DEBT - Execution - Writ of possession - Whether bailiff liable for loss occurring during execution - Whether bailiff agent of the owner of the land

BROOKS, J

1 In March 1997, at Mr. Othniel Martin's request, this court issued a writ of possession for his tenant, Sunrose Limited, to be evicted and for possession of the leased land to be delivered to him. The writ was entrusted to the Bailiff for the parish of Manchester, who was then Mr. Felix Mitchell. The execution commenced on 8 ^th March. It was a large undertaking. According to Sunrose, by the time the execution was eventually completed on the 11 ^th March, its products, materials, tools and equipment had been damaged, destroyed or stolen. It seeks to recover in trespass, from Mr. Martin and the bailiff, compensation for its loss.

2 Both Mr. Martin and the bailiff assert that they can bear no liability for the alleged damage or loss, because all that was done was done in obedience to and in conformity with, the process of this court. The main question to be decided is whether or not Sunrose has proved that the bailiff acted outside the scope of the writ of possession. If the answer to that question is in the affirmative then two further questions must be answered:

• a. was the bailiff at any time acting as the agent of Mr. Martin;

• b. what loss has Sunrose suffered as a result of the breach.

3 The Law

4 The principle concerning the execution of the process of this court is of long standing. It is that officers of this court, who are carrying out its orders, are immune from liability for the actions taken in obedience to those orders. Greer, L.J. in Williams v Williams and Nathan [1937] 2 All E.R. 559 at page 563 put it succinctly:

"...It appears to me that the law is as stated by Parke, B., in Howard v. Gosset [(1847) 10 Q.B. 359] at p. 453, that the sheriff and his officers executing a judgment, however wrong the judgment may be, or however mistaken they may be as to the effect of the judgment, are not liable to have an action brought against them for damages for what they have done."

5 In our jurisdiction, it is a bailiff rather than a sheriff who is the relevant officer for executing writs issued by this court A bailiff of the Resident Magistrate's Court is, by section 17(1) of The Judicature (Supreme Court) Act, a bailiff of the Supreme Court. That section also authorizes the bailiff to execute the process of this court. In 1997 the specific authority for the issue and execution of writs of possession was outlined in section 648 of the Judicature (Civil Procedure Code) Act (CPC). Rule 45.4 of the Civil Procedure Rules 2002 (CPR) now applies in respect of such process.

6 A bailiff is liable, however, if any act is done in excess of the authority given by the writ. (See De Coppett v Barnett (1901) 17 T.L.R. 273 C.A. ) The bailiff is also liable for the negligence of his officers. Although I have not found any decided case on the point, it is my view that a bailiff who conducts the eviction in a wanton manner, with absolutely no regard for the property being removed from the premises, would be liable to an action for trespass. He would be in a similar position to a bailiff who takes possession of more land than the writ describes. It would be an exercise in excess of his authority.

7 Despite the statement made above, I accept as an accurate statement of the law, the submission of Mr. Adedipe, for the bailiff, that the bailiff is not required to "tiptoe" while carrying out his function of ejectment. I also accept that once the items have been placed outside of the premises, the bailiff has no further responsibility in respect of them. He is not obliged to secure them from either human or natural elements.

8 The bailiff is not the agent of the landlord who seeks to recover possession, unless the bailiff, at the landlord's request takes some action outside the scope of the writ of possession. In Barclays Bank Ltd. v Roberts [1954] 2 All E.R. 107, the sheriff acted on the advice of the landlord's solicitors in evicting a sub-tenant who was subsequently proved to be in lawful occupation of the premises. It was held that the sheriff's officers had acted in accordance with the writ of possession and did nothing beyond what they were authorised to do by the court. It was further held that the advice by the solicitors did not make the sheriff's officers the agent of the landlord and therefore the landlord was not liable for the wrongful eviction.

9 Mere presence of the landlord at the time of the eviction does...