Evicting people from land is the most consequential thing a court order can do. Order 13 Rule 3 of the National Court Rules 1983 surrounds it with safeguards.
Order 13 Rule 3
(1) A judgement for possession of land may be enforced by a writ of possession in Form 53, or, in a case in which Rule 6 applies but subject to Rule 8, by committal and sequestration.
(2) A writ of possession to enforce a judgement for possession of land shall not be issued without the leave of the Court.
(3) A person may move for leave without filing or serving notice of the motion.
(4) The Court may grant leave on terms.
(7) A writ of possession may include provision for enforcing the payment of money required to be paid by the judgement to be enforced by the writ.
A writ for levy of property issues on production of the form and the verifying affidavit. A writ of possession does not: leave of the Court is required in every case, not only in the six situations listed in Rule 18.
Sub-rule (7) is a convenience: where the judgment also awards money — arrears of rent, mesne profits, costs — the writ may enforce that too, avoiding a second writ.
Rules 3(5) and 3(6)
An applicant for leave must show who was in occupation of each part of the land at the time of the commencement of the proceedings and who has been served with notice under Order 4 Rule 14.
Where a person is, on the date of commencement of proceedings for possession of land, in occupation of the whole or any part of the land, and he is not a party, and notice under Order 4 Rule 14 is not served on him, the Court shall, when giving leave for the issue of a writ of possession, direct that the writ be restricted so as not to authorize disturbance of the occupation of that person.
This is not a discretion. An occupier who was in occupation when the proceedings began, who was not made a party, and who was not served with an Order 4 Rule 14 notice cannot lawfully be evicted under the writ. The Court is required to restrict it.
That is why sub-rule (5) requires the applicant to identify each part of the land and who occupied it at commencement. An applicant who conceals or overlooks occupiers is seeking an order the Court would not have made on full information.
Three provisions work together to protect occupiers:
Order 4 Rule 14 — notice to occupier on commencement of proceedings for recovery of land.
Order 12 Rule 30(2) — before default judgment for possession, the plaintiff must file an affidavit showing who was in occupation and proving that each was served with the writ and an Order 4 Rule 14 notice not less than 10 days beforehand, or has ceased to occupy. Under Rule 30(3), where a person has filed a motion to be added as a defendant, judgment may not be entered until that motion is disposed of.
Order 7 Rules 10 to 13 — a person not named as a defendant may, by leave, appear and defend on filing an affidavit showing that he is in possession by himself or his tenant; a landlord in possession only by a tenant must say so; and a defence may be limited to part only of the property.
See also Order 5 Rule 8(3), under which a person in possession may apply to be added as a defendant.
Order 12 Rule 30(4)
Where a plaintiff claims possession against more than one defendant, judgment entered under the default judgment Division shall not, unless the Court otherwise orders, be enforced against any defendant until judgement for possession of the land is entered against each defendant against whom the claim is made.
The plaintiff cannot evict one occupier while proceedings continue against another. Enforcement waits until judgment has been entered against all of them, unless the Court orders otherwise.
What to put before the Court
- The judgment, entered and sealed — Order 12 Rule 18(1)(c) requires entry where an order is to be enforced.
- Who was in occupation of each part of the land at commencement — r 3(5). Identify them by name where possible, and describe the parts.
- Who was served with an Order 4 Rule 14 notice, and when — exhibiting the notices and affidavits of service.
- Who has since ceased to occupy, if that is the case.
- The terms proposed — the Court may grant leave on terms under r 3(4), and may restrict the writ under r 3(6).
- Any money to be enforced by the same writ under r 3(7).
The motion may be made without filing or serving notice under r 3(3) — which places a corresponding duty of candour on the applicant, since the Court hears one side only.
Disputes as to interests in customary land are for mediation and the Local Land Court under the Land Disputes Settlement Act (Chapter 45), not the National Court. A writ of possession is not a route around that jurisdiction. See challenging jurisdiction.
Note too that under Order 13 Rule 21 the Court may, on terms, stay execution of a judgement or order — and under Rule 11 a person bound may move for a stay on the ground of matters occurring after the date on which the judgement takes effect. Both are available to an occupier facing eviction whose circumstances have changed.
The writ is executed by the Sheriff, who may not suspend execution except on an absolute instruction in writing lodged by the party who lodged the process — Order 13 Rule 43(1). A stay must therefore come from the Court or from the judgment creditor in writing.
Sources
- National Court Rules 1983 — O 4 r 14; O 5 r 8; O 7 rr 10–13; O 12 rr 18, 30; O 13 rr 3, 5–8, 11, 18, 21, 43; Form 53
- Land Disputes Settlement Act (Chapter 45)
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.