3BM30345

Neutral citation number: [2015] EWHC 4056 (Ch)

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre
33, Bull Street
Birmingham B4 6DS

21st December 2015

Before:

HIS HONOUR JUDGE PURLE QC
(sitting as a High Court Judge)

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B e t w e e n:

SHAKILAL ABDUR REHMAN & ANOTHER
Claimants

and

MOHAMMED ALI & OTHERS
Defendants
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Transcribed by Cater Walsh Reporting Limited
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MISS MICHELLE CANEY (instructed by Enoch Evans LLP) appeared on behalf of the Claimants

MR SIBGHAT KADRI QC MR RASHID AHMED AND MR MOHAMMED SARWAR (instructed by Osmans Solicitors) appeared on behalf of the first to sixth Defendants inclusive (the seventh defendant being named as “Persons Unknown”)

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JUDGMENT
Monday 21st December 2015

SHAKILAL ADBUR REHMAN & ANOTHER – v – MOHAMMED ALI & OTHERS

JUDGE PURLE:

1.	Khaddam Hussain was a distinguished member of the Muslim community in Walsall who, sadly, died in 2005.  In early 2003 he identified some land which he thought he could use for the benefit of the Muslim community in Walsall.  I use the term “benefit” neutrally so as to prejudge nothing about beneficial ownership.  

2.	Eventually, three plots of land were purchased.  The first plot, purchased in June 2003, was land on the north side of Mill Street, which I shall call the first plot.  Its title number is WM802831.  Subsequently, in 2010 and 2011, two further plots were acquired for car parking:  land at the back of Rycroft Villa, an adjoining property (the title number for which is WM965330) and land forming part of Rycroft Villa (the title number for which is WM985567).  

3.	The issue in this case is: were the plots acquired beneficially for the legal owners or were they acquired beneficially under a charitable trust for the Muslim community of Walsall as a place of worship and education?  The second and third plots, it is common ground, were purchased as car parking for what had by then become a mosque.  If therefore the first plot was held on a charitable trust, then the initial inference would be that the second and third plots were likewise acquired.

4.	Equally, contrary-wise, if the first plot was held either for the legal owners beneficially or, which is an alternative, on a private trust for the family of Khaddam Hussain (or those surviving him) the initial inference is that the second and third plots were likewise so acquired.  There is nothing inevitable about that but it is the initial inference, as I say.  

5.	It is necessary, first, therefore, to consider the basis upon which the first plot was acquired.  This is the plot which has now become a mosque.  

6.	I have heard evidence from a large number of people who have had, as is so often the case, to cast back their minds to over ten years ago and who, under the pressures of cross-examination, have been asked to specify particular dates upon which particular conversations may have taken place.  This inevitably gives rise to the real risk that honest witnesses commit themselves to dates and detail lacking accuracy.  This is something I have had in mind when considering all the evidence in this case.  

7.	As the primary case of the defendants is that the property was acquired on trust, they immediately have the hurdle of section 53(1)(c) of the Law of Property Act 1925 to overcome.  That provides that a declaration of trust of land must be in writing, though there is an exception for implied, resulting or constructive trusts.  

8.	It is the primary case of the defendants that there was a constructive trust, though there may also be an argument for a resulting trust, at least for the later acquisitions.  They also have an alternative case on the pleadings, which I think is still maintained as a fall-back position, to the effect that the land is held upon trust for the members contributing to the purchase of, or possibly for the members for the time being of the congregation of, the mosque;  that is to say treating the association as a members’ club rather than as a charity.  That, as I say, is a fall-back position, as also is another plea of estoppel.  There is said to be a proprietary estoppel which at the very least gives the defendants who have been contributing members of the congregation of the mosque for varying amounts of time an irrevocable licence to remain at the mosque and to enjoy its facilities.

9.	The claimants have not sought to close the mosque, except temporarily for a short while in March 2012, following a disturbing attack upon one of the claimants’ brothers who also was responsible at that time for running the mosque.  It is not suggested that any of the defendants or their associates were responsible for that attack, whatever suspicions may have been held on the claimants’ side from time to time.  

10.	The claimants bring these proceedings for possession because the defendants have themselves taken over control of the mosque, with the result that the claimants are now unable to access the mosque because they do not have the current keys.  There was some evidence which suggested that the keys have not changed but that is contradicted by the pleadings, and it is clear beyond peradventure that the defendants control the mosque and not the claimants.  Therefore, the claimants want possession, not to close the mosque down but because they, they say, own it and (I infer) will re-open it under their control as a mosque which is theirs, but which will still be run for the benefit of the Muslim community in Walsall.  

11.	The proceedings are brought against six named defendants.  The conventional “Persons Unknown” are also joined as the seventh defendants.  The reason the particular defendants have been chosen is that following a falling out between the parties, on 1st April 2012 the first to sixth defendants executed a deed of trust, appointing themselves as trustees of a body known as the North Walsall Muslim Trust.  It is said that that was set up because it was intended that the 3 plots, which had by then all been acquired in the names of the claimants, should be transferred into the trust.  When I say it was intended, that was the intention of the defendants.  There had been in 2011, and 2012, community discussions through the mediation of the police and others.  The police’s attention had been drawn to disturbances in which the differences between the parties were aired and mediation was promoted by which the differences might be resolved.  

12.	There had been demands by certain members of the congregation that they should be more involved in the management of the mosque.  Various proposals were put forward, which included the creation of a charitable trust, which seemed at one stage to be very close to fruition.  The negotiations ultimately broke down over the constitution of the management committee.  In short, the claimants wanted to have a majority of those in control and the defendants wanted the claimants to be in the minority, but the claimants, perceiving themselves to be the owners of the mosque, dug their heels in and did not agree to this proposal.  That is a tragedy but it is in the past and I have to decide where the rights and wrongs now lie.

13.	The primary case of the defendants is that the first plot, having been acquired with the intention that it should be run as a mosque, became charitable property from the word go.  What Khaddam Hussain, who fronted all discussions with the local community, should have done, the argument goes, was to create a charitable trust.   Further, by putting the property into the names, as he did, of two of his eight sons, who are the claimants, they, too, who knew and respected Khaddam Hussain’s wishes, were affected by the intention to create a charitable trust so that there was even at that stage a charitable trust of a constructive nature.  

14.	I am prepared to assume that charitable trusts can be created through the medium of a constructive trust.  That is certainly so in the case of secret trusts, which are conventionally regarded as constructive trusts.  In this case, however, I am concerned with a common intention constructive trust so that at the initial stage the common intention had to be shared by Khaddam Hussain and the two sons who were purchasing and who are now the claimants.  It may be that the other six sons had to share that intention as well because on the claimants’ case, Khaddam Hussain explained to his sons, and they all went along with this, that he would put the property into the names of two of them, who are the claimants, but the two of them would hold the property for the benefit of all of them, that is to say, all eight sons.  

15.	A later letter detailing the history was sent to the police by the brothers’ solicitors.  The letter appears to have been sent (according to the reply from the police) on 30th October 2013.  In that letter, a formal complaint was made on behalf of the brothers about the police’s behaviour, the details of which I need not go into.  The letter set out what was said to be the intention behind the purchase and also recorded, which I was also told in evidence, that Khaddam Hussain (who by 2013 was long since deceased) spent his life’s savings on the mosque prior to his death and that other loans were provided by family members and close friends.  That letter stated as follows: 

“The agreement between our clients and their late father was that all would own a share of the property although only the claimants would be the legal owners with their names on the title deed of the property.”  

That suggests that Khaddam Hussain was to have a share as well.  Be that as it may, at the time the evidence came to be prepared in this case, the range of beneficial owners was limited (subject to one further document to which I shall come) to the eight sons.  It may be that that merely reflected the passage of time and the sad fact that, since the first plot was bought, Khaddam Hussain was no longer with us.  

16.	The first plot, as I have said, was acquired in the names of the claimants.  The evidence of the claimants, as the letter I have read indicated, is that the money for its purchase was provided by family and friends.  There is, however, no doubt in my mind that at the time of its purchase in 2003, the acquisition of the first plot was certainly discussed also with the senior and certain other members of the Muslim community.  The pleaded case has varied somewhat as to who they were and the defendants’ evidence in some respects went beyond the pleaded case.  The exact identity of who the discussions were with is ultimately neither here nor there because what happened is that Khaddam Hussain sought financial support from prominent members of the local community who were unable or unwilling to give it at that stage.  

17.	The purchase price was a substantial sum of £85,000 plus costs and that had to be funded by the claimants.  One of the claimants put up, as a result of a second mortgage on his home, a sum just in excess of £28,000 and the rest, it is said by the claimants and not ultimately disputed by the defendants, was raised from family and friends.  It is also said by the claimants that these were all loans.  

18.	I have seen a number of cheques from the time the first plot was purchased.  The cheques were made out to the claimants.  It would appear, therefore, that the claimants individually took on the burden of those loans for (at least in a loose sense) the eight brothers and possibly Khaddam Hussain as well.  

19.	The property having been purchased in the names of the claimants, there is, as Miss Caney pointed out, a presumption that the claimants also became beneficial owners, but that can be displaced by proof.  So far as the position at the date of the initial purchase is concerned, the claimants’ evidence was that all eight brothers should have an interest.  As the brothers are not at odds with themselves, there is no issue which I have to decide as to whether or not that takes effect as a constructive trust, or merely as a matter of family honour, there being nothing in writing which would otherwise satisfy section 53(1)(c).  Either way, there is no charitable trust.  

20.	The alternative argument from the defendants is that as the property was purchased for the benefit of the community as a mosque, then a charitable trust took effect from inception.  

21.	I am prepared to assume, for the sake of argument - and there is evidence from the defendants’ side to this effect - that Khaddam Hussain did make it clear that his intention from the outset was indeed, if that could be achieved, to use the first plot as a mosque.  However, it was at the time a disused factory and planning permission might or might not be granted for a change of use.  It is said on the claimants’ side that one fall-back position was that the first plot might be developed as apartments.  I have, however, seen no evidence suggesting that that was ever a serious proposal.  

22.	I also have no doubt that Khaddam Hussain’s wishes can, for practical purposes, be equated with the wishes of his sons, because he, as head of the family, was shown the respect and deference conventionally due to the head of a Muslim family.  Nonetheless, the sons went about getting planning permission by reference to a plan describing a proposed “community and education centre”.  The “community” in question was the Muslim community as the intention always was that the learning centre should be for religious learning, and the religion in question was the Muslim religion.  Khaddam Hussain was a devout Muslim and regarded by all as such.

23.	The first plot was purchased in June 2003.  Even before its purchase, however, renovation work started on the property, which was very run down.  Planning permission was applied for on 17th October 2003, for use as “a community and learning centre” which is in line (though not exactly in the same language) with the plan to which I have referred.  Planning permission was eventually granted on 18th February 2004.  

24.	It is noteworthy, as I have said, that the works started, in earnest, even before the purchase of the first plot took place.  Khaddam Hussain must have been very much trusted by the owner of the first plot as well as a very trusted member of the local community because the works were substantial, even before exchange of contracts and completion of the purchase in June 2003.  

25.	I mention that because it would be wrong to attach too much importance, when considering what the intentions were as at the date of purchase, which was June 2003, to the fact that some key dates were very much later, such as the grant of planning permission in February 2004.  Another date, occurring later still, was 30th March 2004, when the claimants were granted a certificate of registration to enable the first plot to be used as a place of religious worship.  It would be wrong to infer from those dates alone that the relevant intention to use the first plot as a mosque was only formed after June 2003.  It appears that utility bills were paid on the first plot since June 2003 but no rates were paid because the building was from acquisition treated as a place of religious worship.  Moreover, there is evidence of an inaugural opening of the mosque on 8th August 2003.  A flyer was produced in evidence by Mohammed Ali, the first defendant, confirming that date.  It was suggested by Miss Caney that this document, which, unfortunately, was only produced late following various questions put to Mr Ali in cross-examination, cannot have been a contemporaneous document, though dated 8th August 2003, because the certification of registration came much later and renovation works were still going on.  I accept that renovation works were going on at this stage but I infer that the property was in a sufficiently secure state to enable an inaugural opening of the mosque to take place.  A guest Imam came from elsewhere and he at the end of the ceremonies declared that the building was suitable to be run as a mosque.  I accept this evidence about the inaugural opening 

26.	I infer from the preceding summary of the early history that the intention of Khaddam Hussain from the outset, and his sons, was that this property should be used as a mosque if possible and, if not as a mosque, then for other purposes connected with the promotion of the Islamic religion.  That is consistent with the language of “a community and education centre” or “a community and learning centre”.  

27.	It is said by the claimants that one of the primary intentions upon acquisition was that the first plot should be used as a venue for wedding celebrations; that is to say, not religious celebrations but the festive celebration that takes place following a wedding which would be a commercial enterprise and inconsistent with the concept of a mosque as such.  However, I have not been shown any convincing evidence, or indeed any real evidence at all, that the building was ever used commercially as a wedding venue.  It certainly came to be used, as was always intended, for religious wedding ceremonies to take place and it is a small step from that for the venue to develop into a mosque.

28.	In my judgment, the proposal that the venue should be used as a commercial wedding centre was never a serious one though it may have been mooted before the purchase was completed as a possible fall-back position just as possible development might have been mooted.  This was, after all, an investment which could have gone wrong; if, for example, planning permission for a community and education centre had not been granted.

29.	Pausing there and assessing the intention of the parties as of June 2003, it is, in my judgment, clear that by that date the primary intention of opening a mosque had been formed by Khaddam Hussain and his sons, including the claimants.  This had also been discussed with a number of members of the local community but it had to be funded by the family acquiring it, which was Khaddam Hussain’s family, who borrowed substantial sums for that purpose.

30.	Nonetheless, the intention was as a matter of fact to benefit the community, but that is not enough without more to create a charitable or any other form of trust.  What I have to decide is whether or not that factual intention translated into a legal commitment to hold the property only for the benefit of the community.  Whilst there was an intention to benefit the community which has, I find, been honoured to this day by the claimants (at least until they were dispossessed), benefitting the community did not, in my judgment, become part of the legal obligation which the claimants assumed, whether on acquiring the property or subsequently.  

31.	The claimants paid the purchase price and were at risk of having to repay the loans, including the second mortgage to which I have referred.  Loans in various amounts came from a variety of people, some of whom have been called to give evidence.  Not all of them have been called but I cannot criticise either side for not calling all relevant witnesses because the district judge in this case put a limit on the number of witnesses, and so instead of having endless numbers of witnesses trooping into the witness box and saying the same sort of thing, I have had specimen witnesses.  That is less than wholly perfect justice in some people’s eyes but was necessary for case management purposes.  As it happens, the original estimate for the length of this trial considerably overran and a trial that started in September 2013 did not regrettably conclude until July 2014.  This has necessarily made the preparation of this judgment more laborious because it has been necessary, as I have done, to reconsider all the notes of evidence as well as the documents in some detail.  I hope that I will be forgiven, in an effort not to make this judgment overlong, in not going through all the evidence (not all of which was especially relevant or even helpful) but in summarising the relevant parts.  

32.	What I can say is that I read and heard no convincing evidence to suggest to me that there was an intention actually to create a charitable trust in 2003, as opposed to acquiring the premises privately and operating them for the benefit of the local community.  The position might, however, have changed after 2003.  It is established law that if one person represents or promises to another that that other person will acquire an interest in property in certain events and that other person acts to his or her detriment in reliance upon that representation or promise, that may give rise to a constructive trust in favour of the person in question or to a proprietary estoppel.  That is well established in the case of individual promisees or representees.  The sort of promise or representation that is needed, whilst it generally has to be clear, need not be the sort of promise that would necessarily give rise to contractual obligations.  Sometimes the word “assurance” is used and that gives the flavour of the sort of representation or promise that is often needed.  

33.	That, as I have said, is the position in the case of individual representees or promisees.  However, I am not concerned, at least on the defendants’ primary case, with the position of individuals.  I am concerned with the position of the community at large.  What is said in this case is that the community (by which is meant the congregation of the mosque and/or the wider Muslim community of Walsall, who responded from time to time to matters such as door to door collections) contributed both financially, and in some cases by their physical efforts, in the renovation of the building, of the payment off of debt and, in the case of the second and third plots, to their acquisition and development.  

34.	In my judgment, if a sufficiently large section of the community is induced to contribute in this way by representations or promises that the product of their contributions will be held for charitable purposes benefitting a significant section of the community, that may be sufficient to give rise to a constructive trust of a charitable kind.  However, as that would, in this particular case, result in a change of the beneficial ownership of the first plot once acquired, clear and convincing evidence is obviously needed.  

35.	I should at this point also refer to a document dated 15th October 2004 headed “Declaration of Trust.”  That reads as follows:  

“We Mohammed Shabiral Rehman [whose address is given] and Shakilal Abdur Rehman [whose address is given, who are the two claimants] create a private trust for the benefit of Khaddam Hussain’s family only.  The asset of the private trust is the property owned in title deed number WM802831 [which, as I have said is the first plot].  The private trust will be known as Javid Majid Hamza and Community Centre.”  

The document then goes on to specify who the eight trustees are, being in fact the eight brothers, and is then signed and witnessed by all of them.

36.	This document, I was told in evidence by the first claimant, came about because once the mosque was up and running (which was certainly no later than the spring of 2004 and probably before given the inaugural opening in August 2003) members of the congregation wanted to be involved in the management of the mosque.  That was a perfectly natural aspiration and from my limited experience of these matters not unusual in the Muslim community.  As a result of Khaddam Hussain’s dealings with the members of the congregation members in question, he (Khaddam Hussain) suggested to his sons that a declaration of trust should be prepared confirming the family’s interest in and right to retain control of the mosque.  I accept that evidence.  

37.	The genuineness of the document as a contemporaneous document was challenged by Mr Kadri QC for the defendants because it was signed by, amongst others, one of the brothers who on 15th October may well not have been present in England because he had gone to the United States for Ramadan.  I agree that the date is open to question.  The date I note is typed in and is likely to be the date when the document was prepared, not necessarily when it was signed. 

38.	I do not think it is right to speculate about what period of time might have elapsed between the preparation and signing of this document.   The events which gave rise to it are effectively confirmed by evidence from the defendants as well.  There clearly have been from time to time, including in 2004, concerns on the defendants’ side, and on the part of the congregation generally, that the management of the mosque has not included anyone other than the Rehman family.  Ashgar Khan in particular gave evidence of conversations that he had in 2004 in which his attempts to obtain for the congregation a management role were rebuffed by Khaddam Hussain, who suggested that the congregation should put up a substantial sum of money (of the order of £25,000) in order to participate in the management.  

39.	The document creating a private trust thus came about.  I say “creating” a private trust guardedly because Miss Caney, who appears for the claimants, seemed inclined to accept (as any lawyer reading this document might) that the trust so called was probably void for uncertainty.  I need not consider whether extrinsic evidence would be admitted to identify the relevant family members, which on the evidence of the claimants would appear to have been the eight brothers alone.  Without extrinsic evidence, a bare reference to “Khaddam Hussain’s family” is almost certainly too wide and indefinite, and therefore insufficiently certain.  Nonetheless, what the document does show is that the claimants perceived at the time that this was a private trust and had no intention of creating a charitable trust.  I have no doubt that that was a genuine perception and a reasonable one because the family had put up or borrowed the money for its purchase.  

40.	It is said, however, that at the time of the purchase of the first plot Khaddam Hussain made a promise to prominent members of the community to the effect that if the community (as might be expected over time in the case of a mosque) contributed enough to enable the debt incurred for the purchase of the first plot to be paid off, then the mosque would belong to the community. 

41.	I do not accept that anything as straight forward and simplistic as that was said.  It seems not to sit easily with Ashgar Khan’s evidence which had nothing to do with periodical payments resulting in the acquisition of an interest but required instead some substantial contribution in the order of £25,000 to be made.  Khaddam Hussain had been looking for contributions of substance from the outset in 2003 but had not achieved that from the community.  Accordingly, I do not accept the evidence that any promise was made as to subsequent transfer of beneficial ownership, either at the time of the purchase or, for that matter, in 2004.  Had anyone come along with, say, £25,000 it would then have been a matter of discussion and agreement as to what interest that person might acquire.  It does not follow that whatever interest that person might have negotiated would have resulted in the conversion of what was essentially a privately owned property into a charitable trust.  There are many privately owned properties in which the owners from time to time act in a way which is beneficial for the community (a private school is a good example).  Intending to act, and then acting, in that way does not however result in the creation of a charitable trust unless the property can only be used lawfully for that or some other charitable purpose, as opposed to that being the only purpose for which the property is for the time being used or intended to be used, even indefinitely.  In other words, there must be some legally recognisable and enforceable restraint upon the legal owners’ freedom of action to deal with the property in whatever way he or she thinks fit, preventing the owner from treating it as his or her own.   Not every benefactor is, simply by acting benevolently, creating a charity, though it may be desirable, often for tax reasons, to do so.  The creation of a charity has not, however, occurred in the present case, expressly, constructively or otherwise.

42.	My attention was also drawn to later features of the claimants’ behaviour.  In September 2013, a number of the brothers signed off accounts treating the mosque as a charity, indicating that a charity registration number was to be applied for.  Habibal Rehman, one of the brothers said that the accountants were mistaken though he accepted that he signed off the accounts in question.  By the time those accounts were signed off, the parties were already at odds with each other and I was surprised to see the reference in the accounts to applying for a charity number.  However, that reference could not have created a charity if there was not one before.  I have no doubt that Habibal Rehman has, as he accepted, considered with his brothers, and other members of the community, the creation of a charity and therefore of applying for a charity number.  However, no application has in fact been made.  The accountants, with respect to them, do not seem to have looked into the matter in any depth because they had two of the brothers, who were not the legal owners, signing as trustees.  They do not seem either to have called for sight of the constitution.  Had they done so, they would have been told that there was no constitution.  Moreover, the defendants themselves (though this is only a side point) have no faith in those accounts which they say severely understated the income in fact received by the claimants over the years.  Be that as it may, I do not think there is anything in the drawing up of those accounts at that relatively late stage which requires or justifies any conclusion other than the one that I have reached on the totality of the evidence extant from 2003 onwards.

43.	I need also to consider the evidence, which a number of defendants have given, about what of relevance happened, if anything, after the acquisition of the first plot.  It is said that in 2007, which was after Khaddam Hussain’s death, the Imam at the mosque, Imam Niazi, announced upon the instructions of Habibal Rehman, who was then effectively running the mosque on a day to day basis, that all the debts had been paid off and that, therefore, the mosque was now the community’s.  

44.	This lacks credibility, in my judgment, although oral evidence to this effect came from a number of sources, firstly, because I have already held that there was no pre-existing arrangement of that sort, and, secondly, possibly more importantly, this version of events does not fit the other known facts.  If there had been such an announcement one would have expected there to be some response, such as the drawing up of a constitution and trust deed but there is neither a constitution nor a trust deed establishing the mosque as a charity.  The North Walsall Muslim Trust was subsequently established by the defendants on 1st April 2012 after the parties had fallen out but that never in fact got anywhere because the anticipated land transfer, which must have been anticipated more in hope than in expectation, did not occur.  Moreover, the debts had not all been repaid.  There are still outstanding debts owed to the original contributors.  The evidence about all that is not, I have to say, wholly satisfactory but, nevertheless, the defendants accept that the original purchase was funded in the way that the claimants say.  

45.	As far as the £28,090 raised by way of a second mortgage is concerned, that was replaced on the evidence by a loan from a family member, the brother of a brother-in-law.  Many of the other people who advanced money say they have not had their money back.  The loans in truth appear to have been soft loans in the sense that the lenders may never have intended to demand them back, though strictly entitled to do so.  The most likely explanation, though such of the lenders who gave evidence denied this, is that the lenders were willing to contribute to the establishment of a mosque and did not really mind whether they were ever repaid or not.

46.	Nonetheless, there is a notebook or diary from 2012, with entries made by Habibal Rehman, referring to a number of the loans, upon which he was cross-examined extensively.  It is not a contemporaneous record and, therefore, the reliance which can be placed upon it is not that great.  It does record (by crossings out) that substantial sums, totalling slightly less than £30,000, were repaid to some of the original 2003 and 2004 contributors.  Those contributions were needed for the acquisition of the plot and for the funding of improvements.  Some improvements may well have been funded also (in cash or kind) by local Muslim businesses seeking to benefit the community knowing that the first plot was to be a mosque.  None of that would, in my judgment, without more be sufficient to create a charitable trust when there was no objectively ascertainable intention to create one. 

47.	Soft though these loans may have been, they were still real, as is demonstrated by the fact that some of them have been repaid, which  Habibal Rehman confirmed in his evidence.  On any footing though, the original debts were not all repaid by 2007.  They may have been recouped in another sense in that sufficient monies may have passed to the brothers from the congregation (and others) enabling them if they so chose to repay the debts, but they chose not to, i.e., they (the brothers) had been recouped even though the lenders had not been.  There is however no convincing evidence of that, and I make no finding to that effect.

48.	I have seen accounts for the ten years or so from 2003 to 2012.  I accept, as Mr Kadri has submitted, that the figures for donations look on the light side when compared, for example, with the records that the defendants have kept since they have controlled the mosque.  Mushtaq Khan and others also explained in the witness box about collections undertaken during this period.  Those collections (though the final total is disputed and ultimately uncertain as a result of skilful cross-examination by Miss Caney) seem to have exceeded £100,000 in a relatively short period of time.  One can safely treat that as a minimum figure because that much at least has been paid to the defendants’ solicitors for legal fees.  This was collected from the community at a time when the imperative need for funds for the purpose of the proceedings was known.  

49.	One of the ironies of this case is that if the defendants succeed and the mosque turns out to be held upon charitable trusts, then in the absence of consent from the Charity Commission or, if consent is refused, the permission of the court, the proceedings would be stayed as they would become charity proceedings within the meaning of section 115 of the Charities Act 2011, the essence of the dispute then becoming: who is entitled to control charity property?  The purpose of section 115 is to prevent charity monies being spent on litigation needlessly.  Unfortunately the bar on proceedings does not operate until it has been established that the body in question is a charity and so this issue has to be decided now.

50.	As mentioned earlier, the imperative need for funds to finance this litigation explains why £100,000 was raised by the defendants in the relatively short time that they have been in control.  That achievement cannot be taken as a firm guide as to how much monies the claimants, without the need to finance litigation, raised previously.  I merely observe that I was not impressed by the claimants’ evidence of the amounts raised, which consisted of a notebook recording figures which appeared, judging by the picture on it, to be a genuinely old notebook.  The figures were all in Habibal Rehman’s handwriting, all in the same pen said to have been written over 10 years or so.  He cannot always have made these entries contemporaneously because he was not always in this country.  He said that during his father’s lifetime his father would tell him what to put into the book upon his return.  Why his father could not make the entries himself is not clear.  I also heard evidence that people were employed at the mosque including Imam Niazi and family members without payment of national insurance contributions or PAYE deductions, so I am not prepared to assume that there has been anything approaching regular accounting. 

51.	I cannot estimate with any reliability what the total amounts received by the brothers were over a period of time.  What I do know is that there was from time to time substantial expenditure, for example on a new roof, and that the brothers maintained the mosque with the help of contributions not just from family and friends but from the congregation as well.  I am, however, unable to conclude that all the debts have been paid, whether by 2007 or subsequently, and somehow distributed amongst the brothers whilst leaving the soft loans in place.

52.	I turn to the acquisition of the second and the third plots in 2010 and 2011.  These also were purchased in the name of the claimants.  In the case of one of the plots the purchase was in the name of the brothers expressly as “trustees of the Javid Majid Hamza Community Centre”.  Apart from the omission of the word “and” that is the name that comes from the 2004 Declaration of Trust which, as I have said, may well be void for uncertainty but contradicts any inference that the plots were purchased upon charitable trusts.  I am, however, satisfied in the case of each of the second and third plots, that as well as contributions from family and friends, there must have been substantial contributions also from the congregation.  A number of people have said they were asked to contribute.  The terms in which they were said to have been asked was put in various ways, such as the purchases being “for the benefit of the community” or the mosque and car parks were to be “the community’s”.  Statements such as this were imprecise and inherently ambiguous.  

53.	The acquisition of plots to be used as car parks would undoubtedly be for the benefit of the community, as the intention was that the car parks should accommodate the mosque and education centre, both of which were in a sense community projects, though privately owned.  However, putting the plots to use for the benefit of the community is not the same as acquiring the plots for the benefit of the community under a charitable trust.  Indeed the fact that both plots were purchased in the same names as before, in one case by reference to a trust which was the name adopted for a private trust, suggests otherwise.  

54.	None of the defendants, or of the members of the congregation outside the Rehman family, knew of the private trust.  Nevertheless, at least some of them knew that the mosque was in the name of the claimants.  Some of them, whilst ultimately admitting this, said the opposite in their witness statements.  If they did not know this one must enquire: who did they think owned the mosque when they contributed to the purchase of the next two plots?  If they did not enquire, then as I have found that the owners of the mosque were the persons shown as such on the title deeds, that is what they must be taken (looked at objectively, which is the correct test for the purpose of constructive trusts) to have intended when contributing to the acquisition of  the additional plots for the mosque.  If one goes to a mosque or other similar institution which takes collections, one is giving one’s money to the institution, whatever its legal status and whoever may own it.  One expects one’s money to be disbursed for the benefit of that institution.  That is what happened in this case.  As it happens, the mosque was privately owned.

55.	A comparison may be drawn in law between this mosque and ordinary clubs, which are unincorporated associations.  Indeed, the defendants plead amongst other things that the mosque is an unincorporated association consisting of its members from time to time.  A club may be a members’ club or it may be a proprietary club.  A proprietary club may have rules allowing the membership to become involved in management.  The property, nevertheless, remains in the ownership of the club proprietor.  Proprietary clubs may run appeals from time to time to raise funds.  That would be for the benefit of the members indirectly because, as members of the club, they would enjoy the product of the funds so raised.  If, however, the club is not a charity, then any donor takes the risk that the money will eventually simply ensure for the benefit of the proprietor.  That is relatively commonplace, though not always fully understood.  

56.	It is not an every day occurrence from what I have heard for a mosque to be privately owned, but I have been told that privately owned mosques, though not common, are not unique.  Any departure from use as a mosque would be inhibited by community pressure and, possibly also, judged by a 2013 fatwa, religious constraints.  Those, however, are not sufficient to produce a constructive trust.  Likewise, those who donate their money unconditionally to a mosque or other religious institution, do so, whatever the formal structure of the mosque or other institution may be, intending to part with ownership of their money and can therefore have no claim under a resulting trust nor, in the absence of a properly formulated and coherent representation, promise or assurance, under a constructive trust or an estoppel.

57.	The witness statements and other material on the defendants’ side are littered with references to what I have referred to as imprecise and ambiguous statements as to what the claimants have said from time to time through the Imam, Habibal Rehman and others. All the witnesses before me appeared to be sincere but I do consider that the witnesses on the defendants’ side, in remembering such parts of the history as were thought to help their case, have subconsciously been guilty of selective memory recall which has in some respects been exaggerated and distorted so as to make their claim more plausible than in truth it is.  

58.	The reality is that everyone who thought about it knew that the claimants were the owners of the three plots and if the claimants, or others on their behalf, as is alleged, said otherwise, that would be a serious deceit.  The claimants deny that they or those speaking for them ever said that the mosque or the car parks belonged to or would belong to the community or the congregation.  I accept that evidence, which was in the main given with conviction and honesty, despite the difficulties I had in considering their evidence as to what was intended by Khadam Hussein at the outset.  

59.	Accordingly, the claimants are entitled to succeed in their claim for possession.  

60.	I have not overlooked in reaching this conclusion one specific piece of evidence of a doctor who gave a substantial sum for the provision of windows in Rycroft Villa, which was also acquired latterly.  This property does not feature in the pleaded defence, but similar observations to those already made about the defendants’ witnesses generally apply to this evidence.  This witness appears to have assumed, without establishing or even asking who the owners were, that because the intention was to benefit the community, the property belonged to the community.  As I have endeavoured to explain, that assumption is not, without more, sufficient to create a charitable or other form of trust following the contribution.

61.	There are of course many cases in which the past creation of a charitable trust will be inferred from very long usage, even though the trust deed can no longer be found.  That is not a feature of this case because the circumstances in which all three plots were purchased are fully documented and we know that there was no charitable trust deed.  Instead there was the 2004 Declaration of Trust which contradicts a charitable intent.
 
62.	There will be an order for possession against the defendants because on the facts that I have found, there is no case for a constructive or resulting trust, or a proprietary estoppel.  

63.	There is a claim for mesne profits.  This has troubled me.  The defendants on taking possession did so purportedly acting as trustees of the North Walsall Muslim Trust.  Under the relevant deed of trust, the trustees were bound to apply the trust property for the purpose of the charitable objects of that trust, which was (in broad summary) the promotion of the Islamic faith and religious education.  That is a very broad summary, and reflected what the mosque had previously been used for.   It was never the defendants’ intention, following their taking possession, to turn the mosque into a centre of profit, nor did they do so.  

64.	The defendants have in the course of running the mosque raised monies for the purposes of funding these proceedings.  They would in all probability have needed to fund proceedings anyway, as the parties had reached an impasse and mediation efforts had failed.  So proceedings in one form or another were likely, even without the defendants’ taking of possession.  In fact the claimants chose, rather than to go through the rigmarole of changing locks back and forth as so often happens in these disputes, to bring matters to a head by bringing these proceedings.

65.	The position on mesne profits is somewhat odd.  It was described in the House of Lords in Attorney General v Blake [2001] 1 AC 268 at 278F, by Lord Nicholls as follows:  

“A trespasser who enters another’s land may cause the land owner no financial loss.  In such a case damages are measured by the benefit received by the trespasser, namely, by his use of the land.”  

66.	That is said to be this case.  The claimants do not claim financial loss, though if they could establish it they would be entitled to it.  This is unsurprising, as they were not running the mosque for profit.  They, therefore, seek to recover mesne profits by reference to the open market rental value of the land.  However, the defendants, having taken possession of the property, have continued to run it as a mosque, which is what the claimants did before them.  There will no doubt be many members of the congregation, not in dispute with either side, who would have attended the mosque during the defendants’ period of control whoever was running it, and who will continue to attend the congregation following restoration of possession to the claimants.  In those circumstances, it seems, frankly, unreal to me to treat the defendants as having received a benefit by reference to the open market rental value of the property.  They have not received that benefit.   What they have received is control of the mosque for the benefit of the local Muslim community.  This is in line with what they were seeking before, in discussions with the claimants, which was a majority on the proposed management board.  They have not however changed the essential function of the mosque itself, as a facility made freely available for the local community.

67.	There could have been evidence as to the price a reasonable person would pay for the management rights the defendants have taken over but that is certainly not the open market rental value.  There is no question of the defendants ever having been in a position to let the mosque to a third party.  There is no question of the defendants ever having sought to acquire by lease or otherwise equivalent property on the open market.  I accept the evidence that there is an open market rental value for this property, I do not however accept that this is an appropriate measure for the calculation of mesne profits in this case.

68.	Lord Nicholls went on at 279D in the Blake case to say this:  

“More difficult is the alignment of this measure of damages within the basic compensatory measure.  Recently there has been a move towards applying the label of restitution to awards of this character: see, for instance, Ministry of Defence v Ashman [1993] 2 EGLR 102, 105, and Ministry of Defence v Thompson [1993] 2 EGLR 107.  However that may be, these awards cannot be regarded as conforming to the strictly compensatory measure of damage for the injured person’s loss unless loss is given a strained and artificial meaning.  The reality is that the injured person’s rights were invaded but, in financial terms, he suffered no loss.  Nevertheless, the common law has found a means to award him a sensibly calculated amount of money.  Such awards are probably best regarded as an exception to the general rule.”

69.	The exception to the general rule referred to by Lord Nicholls is not without limitation.  In the Thompson case, for example, open market value was refused when the only benefit the defendant received was remaining in the property formerly occupied by her with her husband on concessionary terms pending a possession order qualifying her for local authority housing.  Market rent was rejected as an appropriate measure in that case.  The alternative basis of what the defendant would have to pay for suitable local authority accommodation failed for want of evidence.  Accordingly, the mesne profits were assessed in that case as the former concessionary rent, there being no other relevant evidence.

70.	That is a long way from this case.  Further, there is the additional factor in this case that the defendants originally took possession as wrongdoers and were not (unlike in Thompson) lawful occupiers holding over.  Nonetheless, though wrongdoers they acted in good faith, albeit misguidedly, for the benefit of the community, on behalf of a charity, namely the North Walsall Muslim Trust, and not for their own personal profit.

71.	In all the circumstances I do not consider that open market rental value would be an appropriate measure of damages.  The claimants have not lost the open market rent and the defendants have not received it as a benefit either.  No other measure has been put forward and no other loss is claimed.  In the circumstances, the damages must be relatively nominal.  I say “relatively” because I am conscious also that there has been more than three years of wrongful ouster of the claimants, so the damages are not merely derisory.  I must take a figure from the air.  I shall order nominal damages of £500 to be paid by the defendants jointly and severally down to the date possession is given.  That is an arbitrary figure but it is higher than most nominal awards.

72.	There is also a claim which succeeds (as it is not disputed) for the reimbursement of utility supplies which the claimants had to pay even though the defendants were in possession.  As I understand it, the agreed sum is £6,269.82.  The claimants are entitled to judgment in that sum.  

73.	I will now hear argument on consequential matters.