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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Mohammed & Ors v Daji & Ors [2023] EWHC 2761 (Ch) (03 November 2023) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2023/2761.html Cite as: [2023] EWHC 2761 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Fetter Lane, London, London EC4A 1NL |
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B e f o r e :
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| (1) MR SOLAD SAKANDAR MOHAMMED (2) MR IBRAHIM AHMED SHAIKH (3) MR MOLVI NOORUL HAQUE (sued as trustees) |
Claimants |
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| - and - |
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| (1) (2) MR SABIR AHMED EBRAHIM DAJI (sued as a trustee and personally) (3) (4) MR MOHAMMED UMAIR ZULFIQAR (5) MR MOHAMMED SHAIKIR ALAM (6) MR MOHAMMED ZAHID MAHMOOD (7) MR YASIR MUMTAZ (8) MR MOHAMMED ESA MANSURI (9) MR MEHBOOB KHAN (10) MR MOHAMMED ISHAQ CHAUDHRY (sued as a trustee and personally) (11) MR ABDUL MUMIN CHOUDHURY (12) ABDUL HUSSEIN CHAUDHURY (13) AWLAD ALI (sued as a trustee and personally) (14) ZULFIQAR ALI (sued as a trustee and personally) (15) HIS MAJESTY'S ATTORNEY GENERAL (16) MUSHTAQ MOHAMMED (sued as a trustee) (17) HISHAM HASSAN MOHAMED SHAR LALA (sued as a trustee) (18) MUHAMMAD ANISUZ ZAMAN CHOWDHURY (sued as a trustee) (19) (20) MOHAMMED HAYAT KHAN (sued as a trustee) (21) SUHEL ABDUL SAMAD BHOLAT (sued as a trustee) (22) YUSUF MOHAMED SEEDAT (sued as a trustee) (23) ABDUL MALIK (sued as a trustee) (24) USMAN ABDULLAH MUNSHI (sued as a trustee) |
Defendants |
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Andrew Westwood KC, Ted Loveday (instructed by Lee Bolton Monier-Williams) for the Second, Tenth, Thirteenth, Sixteenth to Twenty-fourth Defendants
William Hopkin (direct access Counsel) for the Fourteenth Defendant (part only)
Hearing dates: 20-23, 26-28 June, 4 July, 11 September 2023
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Crown Copyright ©
His Honour Judge Cadwallader :
Introduction
The issues
The property claim
The removal claim
The cy-près claim
Issues for later determination
The parties
Materials
Course of trial
Witnesses
The Claimants' witnesses
Defendants' witness evidence
Approach to evidence
"i) Gestmin:
- We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate.
- Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of "flash bulb" memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event.
- Events can come to be recalled as memories which did not happen at all or which happened to somebody else.
- The process of civil litigation itself subjects the memories of witnesses to powerful biases.
- Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say.
- The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. "This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth".
ii) Lachaux:
- Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities. I extract from those citations, and from Mostyn J's judgment, the following:
- "Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist.
It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…"
- "…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…"
- Mostyn J said of the latter quotation, "these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty."
iii) Carmarthenshire County Council:
- The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness.
- However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said:
"…this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context."
The property claim
The property claim issues
(1) In the circumstances, with what objective intention on the part of the donors and lenders was £1.4 million contributed for the purchase of the Land? (POC 1-2, Def 4(a)(i), (ii) & (xii); Reply 4-8; RtDCC 6-7)
(2) In light of the answer to question (1) and any other circumstances that the court determines to be relevant, were the purchase monies in NatWest bank account no. 34522794:
(i) held for the purpose of C1, C2 and D14 acquiring the Land to fund the building of a mosque and community centre of which they would be the trustees, and to maintain and support the said mosque and community centre, in each case for the use and benefit of the Tablighi Jamaat community in the London region (see POC 2)); or
(ii) held for the religious and other charitable purposes stated in the 1975 trust deed for the Dewsbury Trust/Charity 505732, having been collected on behalf of that charity and held on trust for it (Def 4(a); RtDCC 7-8)?
(3) What was the origin of the deed of declaration of trust dated 5 November 1996 and what (if any) is its legal effect (Def 4(b)(iii)-(iv))? Among other things, did C1, C2 and D14 have authority to execute it?
(4) What are the circumstances in which C1 and C2 signed the documents of 26 October 1998, and in which C1, C2 and D14 signed the documents of 24 January 1999, and what (if any) is the significance of these documents?
(5) Are the factual and legal matters pleaded at Reply 29.1 – 29.7 made out and, if so, what significance do they have (if any)?
The law
"If a simple appeal is made for funds for particular purposes which are in law charitable, then as soon as funds are received pursuant to it a charitable trust will be constituted. Those funds will be held on trust for the purposes which have already been referred to in the terms of the appeal. Where a charitable trust is initially created by donors in general or vague terms, it may be open to the trustee to execute a more specific deed which limits the terms of the trust, provided that it does not conflict with the terms on which the donors made their donations.
It is therefore important that the drafting of the appeal is given careful consideration, before the appeal is launched. Those organising the appeal should do all they can to make sure that the purpose of the appeal is clear and that donors know how their gifts will be used.
Sometimes gifts may be sent before publication of the appeal. If there are more than can be acknowledged individually, the published appeal should indicate that gifts already made will be added to the appeal fund unless the donors notify the organisers within a reasonable time that this is not their wish.
At one level the law is clear: a donation will be held for the purposes intended by the donor. That intention will be ascertained objectively by reference to the terms on which the donor made his gift to the recipient; construed against the factual background known to the donor. Broadly there are three classes of gift to a charity:
(1)A gift to the charity which can be used for the general purposes of the charity.
(2)A gift for a specific purpose which is different from, and typically narrower than the general purposes of the charity, and which the charity can properly accept. Such a gift will be held on trust for the specified purpose. Trusts of this nature are frequently called "special trusts" and the funds held on them are called "restricted funds".
(3)A gift to an individual or committee for indefinite charitable purposes which gives the individual or the committee entrusted with the money implied authority for and on behalf of the donor to declare the trusts to which the sums contributed are to be subject: see Khaira v Shergill [2014] UKSC 33.
Where an appeal results in a gift to a charity, and the terms of the appeal are unclear, considerable practical difficulty can arise in determining which class any donation falls into."
"The real question at the heart of the whole thing is, What is the intention of the donor?"
I did not understand there to be any difference between the parties over this proposition, which applies to charitable appeals as it does to formal charitable settlements.
"If a simple appeal is made for funds for particular purposes which are in law charitable, then as soon as funds are received pursuant to it a charitable trust will be constituted. Those funds will be held on trust for the purposes which have already been referred to in the terms of the appeal. Where a charitable trust is initially created by donors in general or vague terms, it may be open to the trustee to execute a more specific deed which limits the terms of the trust, provided that it does not conflict with the terms on which the donors made their donations: Khaira v Shergill [2014] UKSC 33".
It is still a question of ascertaining the intention of the donors. The terms of the appeal to which the donors have responded will be at least good evidence, and perhaps (depending on the facts) determinative evidence, of the intention of the donors as ascertained objectively.
"There is, moreover, a further difficulty in the way of the trustees. When money is given by charitable persons for somewhat indefinite purposes, a time comes when it is desirable, and indeed necessary, to prescribe accurately the terms of the charitable trust, and to prepare a scheme for that purpose. In the absence of evidence to the contrary, the individual or the committee entrusted with the money must be deemed to have implied authority for and on behalf of the donors to declare the trusts to which the sums contributed are to be subject. If the individual or the committee depart from the general objects of the original donors, any deed of trust thus transgressing reasonable limits might be set aside by proper proceedings instituted by the Attorney General, or possibly by one of the donors. But unless and until set aside or rectified, such a deed must be treated as in all respects decisive of the trusts which, by the authority of the donors, are to regulate the charity. And it is irrelevant to urge that the donors did not originally give any express directions on the subject . . ."
"An executed trust is where the limitations of the equitable interest are complete and final whereas, in an executory trust, the limitations of the equitable interest are intended to serve merely as minutes or instructions for perfecting the settlement at some future period.
A trust is called executory if it directs another, formal document to be executed, or where, instead of expressing exactly what the testator or settlor means, that is, filling up the terms of the trust, he tells the trustees to do their best to carry out his intention. This is executory in that he has not put the precise nature of the limitations into words, but has said in effect, "Now these are my intentions; do your best to carry them out", or he has used such words as, "You shall hold the property on such trusts as will best correspond with" some other dispositions which cannot be exactly mirrored. A trust is executory only where it contemplates, expressly or by implication, the execution of some further instrument to effect the intentions which it evinces. Those intentions must, however, not be too ambiguous as stated. Once a valid executory trust is established, the court will compel the execution of the further instrument and will determine the precise limitations which it is to contain. Executory trusts were typically found in marriage articles and wills, but many comparatively recent examples occur in the interim trust deeds of pension funds, and further examples may well occur in future."
Issue 1: intention: discussion
Tablighi Jamaat background
The arrival of Tablighi Jamaat in the UK: London and Dewsbury
Hierarchy
The Dewsbury Trust and the Anjuman-e-Islah-Muslimeen
"and for the promotion of such religious and other charitable purposes as shall from time to time be directed by the Committee hereinafter referred to such premises being known as the Madrasa Taleem ul Islam And in particular shall permit the said premises and any such buildings as aforesaid to be used for the purposes of the Society known as Anjuman-E-Islah-Muslimeen (hereinafter called "the Society") a copy of the constitution of which is appended to this Deed so long as such purposes shall be exclusively charitable".
Thus there were general Islamic charitable purposes, and a specific obligation upon the trustees to allow the premises to be used for the purposes of that Society as long as those purposes were exclusively charitable.
The relationship between Dewsbury and other UK TJ centres
(1) There was no consistent pattern of the Dewsbury Trust's owning TJ properties elsewhere, and on the contrary the indications are that local properties were locally owned, with the exception of Christian Street.
(2) There was no consistent knowledge or understanding among potential donors for the acquisition of the Abbey Mills site as to by whom and upon what trusts TJ properties were or generally were held. It does seem to have been understood that funds for the acquisition of such properties would typically be raised locally and the markaz would be used primarily for the benefit of the local community.
(3) There was no financial or legal connection between the Dewsbury Trust and the other UK markazi, though some persons might be trustees of more than one trust, and donations might of course be made from one to another.
(4) The Dewsbury elders had a leadership role in the UK TJ movement, and, as with its relationship with Nizamuddin, I find that the obligation owed to the Dewsbury elders by regional markazi at the relevant time extended to practical, moral and religious matters, and its nature was moral and spiritual (and social), but was not legal.
The inception of the Land acquisition
The November 1994 meeting at Christian Street
Source of funds raised and by whom raised
What donors were told about entity to which contributing
The £100,000 paid by the Dewsbury Trustees
On whose behalf the trustees/fundraisers represented themselves to others as acting
Holding out to Forsythes, Grimley JR Eve and the vendor
Holding out to National Westminster Bank plc
Holding out to the Council
The events around completion
"I did prepare a declaration of trust by the 4 legal estate owners declaring they were holding the property upon trust for all 10 trustees of the Association. That declaration of trust will need some alteration to the names, but I take it you would still like to see one? Please confirm."
The reference to 4 legal estate owners is confusing, since at the time there were only 3. I do not think it was a mistake. It was, instead, a reference to the 4 trustees to which it was intended - by both sides at this point - that title to the property should be transferred, but to whom it had not yet been transferred. It reads as if he was volunteering the provision of a declaration of trust which he had already prepared (although it is not before the court), on the instructions of D14, and made by all those four persons in favour of all 10 trustees of the Association, that is, of the Dewsbury association, but which he had not previously supplied to Chadwick Lawrence. He was not referring to the 1996 Declaration of Trust, obviously since he had not prepared it, and it did not do what he said. I consider he was unaware of it at this point (if it existed) since otherwise he might have been expected to have referred to it. He was referring instead to a document which, again, is unfortunately not before the Court, and which reflected what Hafiz Patel had asked D14 to arrange just before completion – not, indeed, a transfer into 10 names (which would have been impossible), but a replacement transfer into 4 names to beheld on trust for the 10 Dewsbury Trustees. It seems that D14 had at some earlier stage done what Mr Patel had originally asked, to the point of having a draft trust deed prepared; but had not carried it into execution any more than the transfers requested. Read in context, it is not to be seen as an acceptance of what was being asserted by the Dewsbury Trust, namely that the purchase money had been provided by it, nor that the property had always been intended to be held upon the Dewsbury Trusts.
Issue 1: conclusion
Issue 2: trusts of purchase money
Issue 4: the 1998 documents signed by C1 and C2, and the 1999 documents signed by C1, C2 and D14
Issue 3: the dating of the 1996 Declaration of Trust
Issue 5: the matters in the Claimants' Reply at paragraphs 29.1-29.7: discussion
Conclusion as to the property claim issues
The Removal Claim
The Cy-près Claim
Conclusion