A spoliation on a district roll is not a small eviction. It is a rule-of-law application. The maxim is spoliatus ante omnia restituendus est. The despoiled person must be restored before all else. That is the whole of the merits.
The two questions, and only two
Was the applicant in peaceful and undisturbed possession? Was the applicant deprived of that possession unlawfully — that is, without consent and otherwise than by due process? If both answers are yes, the order goes. If either answer is no, it does not. Title, a cancelled lease, arrears, a family fight, a “they were only looking after the place” story — all of that waits for the action or the application that is not this one.
Ex parte, and why most of them should not be
Rule 55 of the Magistrates’ Courts Rules and the ordinary duty of utmost good faith apply. An ex parte spoliation is for the lock-out that happened at dawn and will be irreversible by the afternoon, or for the goods that will leave the jurisdiction before a notice of motion can be served. It is not for the landlord who has been negotiating since Tuesday. Full disclosure is not a courtesy. If the occupier has children, say so. If there is a pending eviction, say so. If you have not said so, the interim order is vulnerable and the attorney’s next conversation is with the Legal Practice Council.
Interim, return day, final order
A spoliation granted ex parte is an interim restoration pending a return day. On the return day the court hears both sides on the same two questions and then grants or refuses a final spoliation order. That final order is final on the possessory issue. It is not a declaration of ownership. It is not an ejectment. Write the order so that a sheriff can execute it without phoning chambers: identify the property, identify the possession to be restored, and say by when. Do not add a paragraph about the lease “for completeness”. Completeness is how spoliation orders get taken on review.
A kindly reminder on costs and tone
Self-help is expensive. A respondent who changed the locks on Friday should not be surprised by an attorney-and-client costs order on Monday. A magistrate who lectures the applicant about “both sides of the family” has left the remedy. Stay on the two questions.