Ruksana Amin v Mohammed Rais Amin (decd)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee |
| Judgment Date | 12 October 2020 |
| Neutral Citation | [2020] EWHC 2675 (Ch) |
| Date | 12 October 2020 |
| Docket Number | Case No: CH-2019-000287 |
| Court | Chancery Division |
[2020] EWHC 2675 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
APPEALS (ChD)
On appeal from the County Court at Central London
Order of HHJ Saunders dated 27 September 2019
Lower Court case number: D10CL457
Rolls Building, Royal Courts of Justice
Fetter Lane, London, EC4A 1 NL
Lord Justice Nugee
Case No: CH-2019-000287
Raj Arumugam (instructed by Hodders Law) for the Appellant
Paul Oakley (instructed by S G Law Solicitors Ltd) for the Respondents
Hearing dates: 2 and 3 July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an appeal from a decision of HHJ Saunders sitting in the County Court at Central London given after a trial which took place over a number of days in November 2018 and February 2019 (followed by written closing submissions). His judgment ( “the Judgment” or “Jmt”) was handed down on 26 July 2019, and given effect to in an Order dated 27 September 2019.
The proceedings concerned a freehold house at 104 Gladstone Park Gardens, London NW2 6JX ( “104 Gladstone Park Gardens”), which is registered at HM Land Registry in the sole name of Ruksana Amin, the Appellant ( “Mrs Amin”). The action started as a claim for possession by Mrs Amin, but she was met by a counterclaim for a declaration that she held 104 Gladstone Park Gardens on trust for the Respondents, who are (or were) her husband Mohammed Rais Amin ( “Mr Amin”), now deceased, and her 2 sons, Raja Umaire Amin ( “Raja”) and Zubaire Amin ( “Zubaire”).
HHJ Saunders in the Judgment upheld the counterclaim and found that 104 Gladstone Park Gardens was held by Mrs Amin on trust for Mr Amin, Raja and Zubaire. By his Order he duly made a declaration to that effect, and ordered Mrs Amin to transfer 104 Gladstone Park Gardens to them. He also dismissed Mrs Amin's claim for possession and ordered her to pay the costs. He refused permission to appeal but granted a stay to enable the application for permission to be renewed to the High Court: by Order dated 28 October 2019 I granted permission to appeal and continued the stay until the determination of the appeal.
Respondents' application
Two matters were listed before me at the hearing. One was the substantive appeal; the other was an application by the Respondents by notice dated 28 May 2020. The application sought two things. The first was an order that Mrs Amin answer a Request for Further Information pursuant to CPR Part 18 dated 3 April 2020; the other was an order that Mrs Amin provide a transcript of the evidence at trial for the purposes of the appeal.
I heard argument on the application first and gave a short judgment on 2 July 2020 dismissing both parts of the application. Nothing more needs to be said about the Part 18 Request. So far as a transcript of the evidence is concerned, I accepted the submission of Mr Arumugam, who appeared for Mrs Amin, that it was up to her and her advisers as to how to present the appeal. I did however point out that in circumstances where I had not been provided with a transcript it inevitably followed that I could not be asked to conclude that the Judge had erred where his findings depended on, or might have been affected by, the oral evidence.
Facts
Mrs Amin and Mr Amin met in the 1970s. They were never legally married according to English law but on 28 January 1984 they held a Muslim religious ceremony (a Nikkah) and the Judge found that they regarded themselves as husband and wife. They had four children together, namely a daughter Farzana (born in October 1984), followed by their two sons Raja (born in April 1986) and Zubaire (born in March 1988), and finally a further daughter Aisha (born in August 1991). Their relationship came to an end in 2007, as referred to below.
At the time of the trial Mr Amin was still alive but he died on 4 April 2020 between the Judgment and the hearing of the appeal. I have no information about his estate, and no steps have been taken to substitute anyone to represent his estate for the purposes of this appeal. The only thing that was done was to adjourn the hearing which was then due to be heard later in April.
The history of where Mr and Mrs Amin lived, and the properties that between them they acquired is quite a complex one, but it is helpful to try and disentangle it. Not all of this is covered in the Judgment, and some of what follows is taken from Mrs Amin's witness statement(s) (and reference below to her evidence is to her written evidence). This evidence needs to be treated with considerable caution: I am not generally in a position to know which parts of it were challenged in cross-examination, or qualified or departed from in her oral evidence, but it is clear that she did not make a good witness. The Judge found her oral evidence to be confused and imprecise, and referred to her complete inability at times to recall any precise detail contained in her witness statement – something that happened so frequently that he formed the view that it was almost as if the statement had been written for her by someone else (Jmt at [44]–[45]). With that caveat, the position seems to have been as follows (all the properties referred to below other than the Harrow property are in London NW2):
(1) Initially in 1984 Mr and Mrs Amin lived in a property at 9 Ash Grove with one of Mr Amin's brothers, Mohammed Anis Amin. Mrs Amin's evidence was that this had previously been owned by Mr Amin but he had transferred it to his brother.
(2) In 1988 they and their then 3 children moved into 163 Walm Lane which was let by the local Council to Mr Amin's father.
(3) While still living there, in 1995 they acquired 104 Gladstone Park Gardens. It was registered in their joint names. There appears to have been no exploration before the Judge, and there was none before me, as to what, if anything, was said or agreed or intended as to the beneficial ownership of the property when it was acquired in 1995, and the Judge made no findings about the beneficial ownership on acquisition. Mrs Amin's evidence was that it cost about £90,000, of which some £60,000 was raised on mortgage, and some £20–£30,000 was given to Mr Amin by another of his brothers, Mohammed Shabir Amin. She thought that was in connection with some other property transaction or transactions between the brothers, but it is not necessary to go into the details. She also said that Mr Amin dealt with all financial matters as he did not allow her to have a bank account. The Judge said (Jmt at [27]) that he could not make any findings as to who provided the purchase price as the conveyancing file was not available; but he did find that it was clear that none of the monies had come from Mrs Amin.
(4) Mr and Mrs Amin however did not move into 104 Gladstone Park Gardens. It was in a poor condition and Mr Amin, who was a builder, spent some time renovating it (Jmt at [28]). According to Mrs Amin, they then rented it out, the intention being that the rent would pay the mortgage.
(5) In about March 1999, Mr Amin's father's tenancy of 163 Walm Lane came to an end and he was offered a tenancy of another property at 22 Blackstone Road. Mr and Mrs Amin, and their children, moved there with him.
(6) On 20 May 1999 Mr and Mrs Amin sold 104 Gladstone Park Gardens to Mrs Amin's cousin Shahenaz Banu Shaikh ( “Shahenaz”) (Jmt at [28]). Mrs Amin's evidence was that they sold the property because they were having difficulties meeting the mortgage, the tenants having left, and that they sold it to her cousin for about £130,000; her sister, Rehana Shaikh Azhar ( “Rehana”), had considerable experience buying and selling properties and had helped Shahenaz obtain a mortgage. Mrs Amin also said that the whole of the proceeds were paid into Mr Amin's bank account as she did not have one.
(7) The evidence of Shahenaz, whom the Judge found to be a credible witness, was that the sale to her was not a real sale, but a device to enable Mr and Mrs Amin to raise equity using her name, with Rehana helping her to get a mortgage, and that it never really belonged to her (Jmt at [71]–[73]). She and her family did live there for some time: there was a dispute about precisely when, which the Judge said he did not need to resolve (Jmt at [30]). Mr and Mrs Amin and their children moved into 104 Gladstone Park Gardens in September 2000 (Jmt at [30]).
(8) A further mortgage was raised on 104 Gladstone Park Gardens in March 2002 from the Bank of Scotland. There was a dispute, which the Judge did not resolve, as to who had the use of the monies raised.
(9) In January 2005 Mr Amin acquired a property in Harrow at 113 Leamington Crescent, London HA2 ( “113 Leamington Crescent”). It was conveyed into his sole name. Mrs Amin's evidence was that it cost £240,000, that her mother contributed the £24,000 needed as a deposit, that Mr Amin took out a mortgage (again arranged by Rehana) for some £204,000, and that Rehana contributed the balance.
(10) In July 2005 Shahenaz sold 104 Gladstone Park Gardens back to Mrs Amin, and on 6 July 2005 it was transferred into her sole name. The purchase price was £249,000. I deal below (under Ground 4) with the evidence as to how this was funded.
(11) In the summer of 2007 Mrs Amin moved out of 104 Gladstone Park Gardens. Her evidence was that this was because of domestic abuse...
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