Osagie v Onwuka & Anor (LANDLORD & TENANT – FTT PROCEDURE – party failing to attend a hearing – matters to be considered when deciding whether to proceed in party’s absence – rule 34, Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013) (2024) UKUT 293 (LC)

Mr Michael Osagie (the landlord) appealed a rent repayment order for £12,600 made by the First Tier Tribunal for the offence of illegal eviction.

The FTT had made the rent repayment order at a hearing that neither Mr Michael Osagie nor the solicitors then instructed on his behalf had attended.

Mr Osagie appealed on the basis that:

i) neither he nor his then solicitors had received notice of the hearing; and

ii) the FTT had not given adequate or any reasons why it was in the interests of justice to proceed in his absence.

On ground i) it was unfortunate for Mr Osagie’s argument that his previous solicitors had included an email from him to them with notice of the hearing in a bundle of documents filed for use at the hearing, and that the solicitors had filed a notice saying that both they and Mr Osagie would attend the hearing.

Mr Osagie’s case, as originally explained by his current solicitor, is that he was unaware of the hearing listed on 14 September and that his former solicitor had told him that they too had been unaware of the hearing. That may be what Mr Osagie has told his current solicitor but the contents of the FTT’s file clearly establish that his version of events is untrue, or at best incomplete. A copy of the original notice of hearing addressed to Mr Osagie and sent to him by the FTT by email appears in the hearing bundle submitted by his former solicitors in June 2023. That fact was not apparent until after permission to appeal had been given and it was not addressed by Mr Osagie’s solicitors in their submissions in support of the appeal (they were not instructed at the time the bundle was filed and I infer that they have not seen their predecessor’s file or the original hearing bundle). I therefore considered it necessary to give Mr Osagie and his current solicitors an opportunity to deal with the inconsistency and they were notified of the contents of the FTT’s file, including the email of 4 May 2023 to Mr Osagie and the confirmation from his previous solicitors that he and they would attend the hearing.

Mr Osagie’s current solicitors took instructions from him and in a response provided on 5 September they acknowledged that their predecessors certainly appear to have been aware of the hearing but reiterated their instruction from Mr Osagie that he was not. They did not comment directly on the email to their client attaching the notice of hearing and focussed instead on the confirmation of attendance form stating an intention to attend the hearing on 14 September 2023 and on the fact that it had not been signed by Mr Osagie.

The UT was satisfied Mr Osagie was notified of the hearing.

On ground ii) however, the FTT had not given adequate (or barely any) reasons why it was in the interests of justice to proceed in Mr Osagie’s absence, even after, exceptionally, being asked for their reasons by the UT.

Rule 34 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 provides:

If a party fails to attend a hearing the Tribunal may proceed with the hearing if the Tribunal –
(a) is satisfied that the party has been notified of the hearing or that reasonable steps have been taken to notify the party of the hearing; and
(b) considers that it is in the interests of justice to proceed with the hearing.

This is a two step test, and reasons (even iof brief) should be given for both steps. While the FTT had reason to be satisfied Mr Osagie had been notified of the hearing, it did not give any reason why it was in the interests of justice, either in the decision, or subsequently

For that reason the FTT’s decision could (but was not required to be) be set aside.

The UT proceeded to consider the decision on an RRO order.

There was no reason to question the FTT’s findings of fact, which were as follows (save for the Tmlin Order which was not before the FTT, but was before the UT):

The appellant, Mr Osagie, is the owner of a house at 52 Wanlip Road, London E13. He let rooms in the house to the respondents, Mr Onwuku and Mr Amadasu, in April 2021. On 27 January 2023 Mr Osagie was allowed into the property by the respondents on the pretext that he wanted to carry out some electrical work and, while they were out, he arranged for the locks to be changed and removed their belongings. Mr Osagie later claimed that he believed the respondents had already moved out, but they had not, as he well knew. When Mr Amadasu returned home later the same day, he was unable to get in. After consulting the police he and Mr Onwuku called a locksmith of their own and obtained entry to the property, where they were forced to sleep on bare mattresses in the clothes they had been wearing that day.

On the following night, 28 January 2023, shortly before midnight, the respondents were disturbed by Mr Osagie’s daughter, who forced her way into the house, while two men who were with her were kept out only by Mr Amadasu locking the door; soon Mr Osagie himself arrived and the police were called by the respondents. Mr Osagie claimed that they were squatters who had broken in and that he had not met either of them before, but the police did not accept that account and told him that he should follow the proper process if he wished to recover possession.

On 7 February Mr Osagie gave the respondents notice that he required them to vacate the property but on 8 and 9 February a man claiming to be Mr Osagie’s property manager twice attempted to force his way in, while Mr Osagie sat in his car outside.

The respondents issued proceedings against the appellant in the County Court claiming damages and seeking an injunction to compel the return of their belongings and to protect them from further harassment. They also commenced separate proceedings for the return of deposits which they had paid to Mr Osagie.

An initial order was made for an injunction and damages on 28 February 2023 and the injunction proceedings were subsequently disposed of by agreement on the terms of a Tomlin order dated 26 May 2023. Mr Osagie agreed to pay the respondents compensation of £7,644 for illegal eviction plus their costs of the proceedings. The Tomlin order includes a confidentiality clause by which the parties agreed that neither of them would disclose the contents of the order except as required by law.

At a hearing on 5 April 2023, which Mr Osagie did not attend, a final order was made in the deposit proceedings entering judgment for £2,000 in favour of each respondent and requiring the appellant to pay their costs.

Mr Osagie’s account, that he had thought the tenants had moved out, was simply not credible, as the FTT had found.

The FTT had not had the details of the Tomlin Order from the County Court illegal evictions proceedings before it (though it was apparently aware one was made), just the order from the separate return of deposit proceedings. But:

In view of the admission recorded in the order of the County Court there is simply no possibility that the FTT would have reached a different conclusion about the commission of the two offences, and therefore about its jurisdiction to make a rent repayment order if Mr Osagie had attended and given evidence. Given the seriousness of the offences and the fact that the respondents moved out as a result of Mr Osagie’s conduct, there is no possibility that the FTT would have decided that it was not appropriate to make a rent repayment order. The only possible issue could have been the quantum of the order.

The facts about the illegal eviction recorded in the FTT’s decision, and the agreed payment of compensation and costs which ended the County Court proceedings, demonstrate that Mr Osagie is prepared to trample over the rights of others if he considers it to be to his advantage. Had he taken the opportunity to attend the hearing it is nevertheless possible that he might have persuaded the FTT to order repayment of a lesser sum (perhaps taking into account the compensation which had already been paid). But there is no guarantee that he would have secured a better outcome and the FTT would certainly have been entitled to order repayment of the full amount of the rent even having regard to the compensation already paid by Mr Osagie.

In my judgment the interests of justice do not require that the FTT’s decision be set aside and redetermined.

The RRO was upheld in full.

Comment

There is only one thing that I am puzzling about from this decision, which is obviously right, while conveying a warning to the FTT about the need for reasons as to it being in the interests of justice to proceed in a party’s absence. That is that the UT appears to have taken into account the schedule to a Tomlin Order – the schedule is normally taken as confidential, and, unless the open order part of the Tomlin Order states otherwise, as not amounting to an admission of liability.

It isn’t clear from this judgment how the Tomlin Order was before the UT and who filed it. I’m not wholly sure that the UT could or should have regarded the schedule to the Tomlin as effectively an admission (unless it was filed by Mr Osagie – that would do it! Or there was a recital in the open order, which given the supposed confidentiality clause in the schedule, seems unlikely).

That said, it is is clear that Mr Michael Osagie is a very bad landlord “prepared to trample on the rights of others”, who appealed on a ground that his own previous solicitor’s bundle showed to be false.