Mohammad Saeed v Mohamed Ibrahim
| Jurisdiction | England & Wales |
| Judge | Simon Barker QC,HHJ |
| Judgment Date | 03 August 2018 |
| Neutral Citation | [2018] EWHC 1804 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No. HC-2015-004509 |
| Date | 03 August 2018 |
[2018] EWHC 1804 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
HHJ Simon Barker QC
Case No. HC-2015-004509
Representation
Mr Aidan Briggs instructed by Miller Rosenfalck LLP appeared for the claimants
Mr Arshad Ghaffar instructed by Westbrook Law Ltd appeared for the first and third to fifth defendants
The claim against the second defendant was discontinued before trial
Hearing dates: 13–16 and 19–22 February 2018
The parties and the witnesses
Mr Mohammad Saeed and Mrs Yasmeen Saeed, the claimants (respectively ‘C1’ and ‘C2’ and collectively ‘Cs’), are husband and wife, at least according to English law. They married under Islamic law on 12.5.84 and under English law on 26.7.84. Cs have four children. Their marriage became disharmonious in or about 2003. The cause of the disharmony was, or included, their eldest daughter's choice of proposed husband; C1 was opposed to the marriage, according to his evidence because he was not consulted. C2 apparently disregarded C1's opposition and, with her encouragement, the marriage occurred in 2005. C1 left C2 and travelled to Pakistan on 20.7.08. He remained in Pakistan for 5 1/2 years and returned to the UK on 8.12.13. C2's evidence was that she did not know, or had been misled as to, C1's whereabouts. While living in Pakistan C1 divorced C2 under Islamic law on 13.11.08 and married again. There is a child of that marriage. C1 divorced that wife before leaving Pakistan.
Although their pleaded case, verified twice by statements of truth and further in witness statements, made reference to divorce proceedings initiated by C2 against C1 in about 2004–2005 (the year varies between pleadings and witness statements), it became clear at trial that no such proceedings were in fact commenced. That may not have been a mistake, but rather intended as a relevant circumstance in setting the background to Cs' case. The relevance of the disharmony in Cs' marriage was said to be that it provided the basis for alleged advice given by Mr Mohamed Ibrahim, the first defendant (‘D1’), to C1 and for an agreement they allegedly made in June 2005 (‘the 2005 agreement’) which forms the platform for Cs' claims for declarations, accounts or restitution or damages.
In so far as there have been matrimonial proceedings between Cs it appears that, somewhat later, C2 initiated judicial separation proceedings. She obtained interim freezing and non-molestation orders on 14.9.07. However, those proceedings were discontinued by C2 on 20.11.07. Cs' position at trial was that they are now reconciled and reunited.
C1's background, briefly, is that he was born in Pakistan in 1957 and came to the UK with his mother and siblings, to join his father, in 1978. It is unclear what C1 did for the first decade in the UK. Whatever it was, he was able to purchase a property, 119 Plashet Grove London E6 (‘119PG’), in 1983 in his sole name. C1 did not transfer the property into joint names following his marriage to C2. C1 was employed as a postman from 1988 to 2001 and he was a stallholder at Petticoat Lane market from 1988 to 2002. At some point during the 1990s C1 decided to build up a property portfolio. His first investment was 37 Lansdown Road London E12 (‘37LR’) which was purchased for letting in 1993. He bought and sold a shop in Barking and then a hotel in Blackpool. After retiring from the post office, C1 concentrated on being a landlord. He bought two further properties for letting in 2004: 259 London Road Romford (‘259LR’) and 349 Ripple Road Barking (‘349RR’). 37LR, 259LR and 349RR were all transferred into Cs' joint names on purchase.
As to C1 as a witness, in closing submissions Mr Aidan Briggs, counsel for Cs, submitted that C1 struggled with, or lacked precision when answering, questions about the chronology of events, and that he was very sensitive (a generous way of describing less than candid) about issues concerning his marriage to C2, but on the key issues in the case (cash, interests in and dealings with properties, and trusts) he remained close to his case and was supported by such documentary evidence as is available at trial. Mr Arshad Ghaffar, counsel for the defendants sued at trial (collectively, and excluding Mrs Naheeda Khan, ‘Ds’) refuted the impression C1 sought to give in his evidence that he was weak-minded in personal and business affairs and, therefore, susceptible to influence by D1. As to personal affairs Mr Ghaffar referred to C1's firm opposition to his daughter's marriage in consequence of a slight or disrespect to his position as father, to his Islamic divorce from his wife because he viewed her as unsuitable, and to his divorce in Pakistan from the woman he married there because he came to regard her as unsuitable. As to lack of business and financial acumen, Mr Ghaffar referred to C1's trade as a market stall holder, to his development of a property portfolio, to the existence of several accounts with a number of banks some in his sole name and some in joint names, and to the fact that C1's business and tax affairs were such that he engaged an accountant. Mr Ghaffar submitted that C1's evidence was stamped with hallmarks of unreliability including evasion, contradiction, change of position, and the giving of new evidence. Mr Ghaffar referred to 15 particular examples of unsatisfactory evidence given by C1, traversing his relationship with C2, his dealings with D1, his dealings with cash, his dealings with properties, his inconsistency, and his disclosure; each point was fairly made.
C2 is C1's cousin. She came to the UK in 1984, then aged 17, to marry C1. On the same day as Cs' wedding, C2's younger sister, then aged 16, married C1's younger brother Muhammad Nasir (‘MN’), one of Cs' witnesses. In the UK C2 worked as a seamstress, earning by her own account up to £8,000 a year, and also on the stall at Petticoat Lane. C2's main role was as mother to Cs' four children, now aged 24 to 33 years.
C2's witness statement is in English. The last paragraph states that it was read to her in Urdu. The statement does not identify the reader and there was no evidence from such person; C2 gave conflicting evidence as to who did translate to her. At trial, C2 gave her evidence in Urdu through interpreters. There was some concern on C1's part about the initial session of interpretation. At this stage it suffices to note that Mr Briggs made clear that he would not ask that any of C2's oral evidence be disregarded. In his closing submissions, Mr Briggs observed that C2 was a very difficult witness to follow, she had very limited education, she had led a very sheltered existence, and she plainly struggled with the process of litigation including her witness statement and oral evidence. Mr Briggs submitted that C2 was intimidated by the trial process. As to being intimidated, Mr Ghaffar observed that C2 had disregarded C1's wishes in relation to their daughter's marriage over the period 2003–5 and had facilitated that marriage, had initiated matrimonial proceedings against C1 in 2007, had defended possession proceedings relating to 119PG over the period 2009–2013, and had caused or achieved the transfer of 119PG to her sole name in 2014. In the matrimonial proceedings that C2 did initiate, she did not refer to any disagreement over her daughter's marriage but attributed the disharmony between herself and C1 and C1's attempts to “transfer away the family finances” to the discovery by C1, in 2005, in C2's bedroom, of literature from a women's support group about domestic violence. C2's reference in her 2007 matrimonial proceedings evidence to “my bedroom” rather than “our bedroom” suggests the existence by then of an established rift; and, her reference in the same evidence to C1 “transfer[ing] away the family finances” and the selling of 259LR, 37LR and 349RR and remortgaging 119PG shows that she had at least some knowledge in 2007 of what C1 had been doing.
The claim was begun by C1 alone on 3.11.15. C2 was joined as a claimant by amendment of the claim on 21.4.16. The additional facts alleged on amendment of the Particulars of Claim (‘P/C’) were that the sale proceeds of 259LR were dealt with knowingly by C1 and D1 without the knowledge or consent of C2, that C1 remortgaged 119PG without C2's knowledge or consent, and that D1 received the net proceeds of the remortgages knowing that C2 neither consented to nor knew of the remortgages. Beyond that, C2 effectively adopted C1's pleading and case. On that case, C2 is the victim of fraud perpetrated by both C1 and D1, but she seeks no relief against C1 and seeks effectively the same relief as C1 against D1.
Mrs Naheeda Khan, the second defendant (‘D2’), was a party to the proceedings for a matter of days. The claim against D2 related to her ownership of 349RR over the period 10.6.08 to 11.5.09 (the third in a chain of four relevant transfers of this property) and was for an account of rental income and payment of £25k odd of the net proceeds of the 11.5.09 transfer from her name allegedly retained by her. As already noted, the claim was issued on 3.11.15. It was discontinued against D2 on 10.11.15. On the preceding day, 9.11. 15, D2 signed a witness statement in these proceedings. At trial, Cs called D2 as a witness. In chief, she spent some 10 minutes correcting and clarifying her witness statement. She was cross-examined by Mr Ghaffar. When cross-examined about paragraphs 6 and 7 of her statement, D2 said that the statement had been prepared for her based on information provided by someone else and that she had not prepared or given instructions for the statement...
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