Land – Declaration of trust – Trust deed – Development site purchased for purposes of building mosque by followers of Islamic movement – Leadership dispute resulting in schism in movement – Dispute arising as to ownership of site – Court finding site held on trusts for local London community – Appellants appealing – Whether judge’s conclusion reasonable or justified – Appeal dismissed
A dispute arose concerning the ownership of a 16-acre site known as Abbey Mills in West Ham, London on which a mosque was located. The parties were all followers of “Tablighi Jamaat”, one of the largest Islamic missionary movements in the world. In 2017, there was a schism in the movement, which divided into two opposing factions.
The appellants contended that the site was held on the trusts governing a charity registered under the name “The Anjuman-E-Islah-Al-Muslimeen” for the religious and other charitable trusts of the society of elders in Dewsbury, leaders of the movement in the UK when the land was originally purchased (the Dewsbury Trust).
In contrast, the respondents maintained that the site was held on the trusts declared in a declaration of trust dated 5 November 1996 in respect of “Anjuman-e-Islahul-Muslimeen of (London) UK” for the local London community (the London Trust).
The judge agreed with the respondents. He concluded that the objective intention of donors and lenders was that funds contributed for the acquisition of the site was to acquire the land and build the mosque for the use and benefit of the London community. Fundraising was organised and carried out by the London community from which the monies were raised. The Dewsbury Trust had declined to contribute to the purchase and was not a focus of fundraising activities: [2023] EWHC 2761 (Ch). The appellants appealed.
Held: The appeal was dismissed.
(1) A donation to charity was held for the purposes intended by the donors to 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: see Tudor on Charities, 11th ed.
Broadly there were three classes of gift to a charity: (i) a gift which could be used for the general purposes of the charity; (ii) a gift for a specific purpose which was different from, and typically narrower than, the general purposes of the charity (frequently called “special trusts” or “restricted funds”; (iii) a gift for indefinite charitable purposes which gave the person entrusted with the money implied authority, for and on behalf of the donor, to declare the trusts to which the contributions were subject.
When money was given by charitable persons for indefinite purposes, a time came when it was desirable, and necessary, to prescribe accurately the terms of the charitable trust and prepare a scheme for that purpose. In the absence of evidence to the contrary, the person entrusted with the money was deemed to have implied authority for and on behalf of the donors to declare the trusts to which the sums contributed were subject. If that person departed from the general objects of the original donors, any deed of trust transgressing reasonable limits might be set aside. But unless and until set aside or rectified, such a deed had to be treated as decisive of the trusts which were to regulate the charity: Attorney-General v Mathieson [1907] 2 Ch 383 and Shergill v Khaira [2015] AC 359 considered.
(2) Where a contract had been made in writing, the court’s task was to ascertain the objective meaning of the language which the parties had chosen to express their agreement. The parties’ subjective intentions were immaterial. The same principle applied to deeds establishing trusts: Lifetime settlements were no different from other documents in that the subjective intentions of their authors were irrelevant: Wood v Insurance Services Ltd [2017] AC 1173 considered.
However, where a contract was based partly upon oral exchanges and conduct, a party might have a clear understanding of what was agreed without necessarily being able to remember the precise conversation or action which gave rise to that belief. The evidence of a party as to what terms they understood to have been agreed was some evidence tending to show that those terms, in an objective sense, were agreed. The tribunal might reject such evidence and conclude that the party misunderstood the effect of what was being said and done. But when both parties were agreed about their mutual obligations, it was a strong thing to exclude their evidence from consideration. Evidence of subsequent conduct, which would be inadmissible to construe a purely written contract might be relevant because it showed what the parties thought they had agreed: Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd [1970] AC 583 and Carmichael v National Power plc [1999] 1 WLR 2042 considered.
(3) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it was satisfied that they were plainly wrong. The word “plainly” did not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It did not matter that the appeal court considered that it would have reached a different conclusion. What matters was whether the decision under appeal was one that no reasonable judge could have reached. An appeal court was bound, unless there was compelling reason to the contrary, to assume that the trial judge had taken the whole of the evidence into his consideration. The mere fact that a judge did not mention a specific piece of evidence did not mean that he overlooked it. The trial judge had to consider all the material evidence, although it need not all be discussed in his judgment. The weight which he gave to it was however pre-eminently a matter for him. An appeal court could therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable: Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26, Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 and Volpi v Volpi [2022] EWCA Civ 464; [2022] PLSCS 65; [2022] 4 WLR 48 considered.
(4) Applying those principles in the present case, the matters to which the judge referred provided an entirely adequate basis for his conclusion. There was no question of his decision being one that could not reasonably be explained or justified.
David Holland KC and Ted Loveday (instructed by Herbert Smith Freeehills LLP) appeared for the appellants; Mark Sefton KC and Jonathan Fowles (instructed by Mishcon de Reya LLP) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Mohammed and others v Daji and others
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Land – Declaration of trust – Trust deed – Development site purchased for purposes of building mosque by followers of Islamic movement – Leadership dispute resulting in schism in movement – Dispute arising as to ownership of site – Court finding site held on trusts for local London community – Appellants appealing – Whether judge’s conclusion reasonable or justified – Appeal dismissed
A dispute arose concerning the ownership of a 16-acre site known as Abbey Mills in West Ham, London on which a mosque was located. The parties were all followers of “Tablighi Jamaat”, one of the largest Islamic missionary movements in the world. In 2017, there was a schism in the movement, which divided into two opposing factions.
The appellants contended that the site was held on the trusts governing a charity registered under the name “The Anjuman-E-Islah-Al-Muslimeen” for the religious and other charitable trusts of the society of elders in Dewsbury, leaders of the movement in the UK when the land was originally purchased (the Dewsbury Trust).
In contrast, the respondents maintained that the site was held on the trusts declared in a declaration of trust dated 5 November 1996 in respect of “Anjuman-e-Islahul-Muslimeen of (London) UK” for the local London community (the London Trust).
The judge agreed with the respondents. He concluded that the objective intention of donors and lenders was that funds contributed for the acquisition of the site was to acquire the land and build the mosque for the use and benefit of the London community. Fundraising was organised and carried out by the London community from which the monies were raised. The Dewsbury Trust had declined to contribute to the purchase and was not a focus of fundraising activities: [2023] EWHC 2761 (Ch). The appellants appealed.
Held: The appeal was dismissed.
(1) A donation to charity was held for the purposes intended by the donors to 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: see Tudor on Charities, 11th ed.
Broadly there were three classes of gift to a charity: (i) a gift which could be used for the general purposes of the charity; (ii) a gift for a specific purpose which was different from, and typically narrower than, the general purposes of the charity (frequently called “special trusts” or “restricted funds”; (iii) a gift for indefinite charitable purposes which gave the person entrusted with the money implied authority, for and on behalf of the donor, to declare the trusts to which the contributions were subject.
When money was given by charitable persons for indefinite purposes, a time came when it was desirable, and necessary, to prescribe accurately the terms of the charitable trust and prepare a scheme for that purpose. In the absence of evidence to the contrary, the person entrusted with the money was deemed to have implied authority for and on behalf of the donors to declare the trusts to which the sums contributed were subject. If that person departed from the general objects of the original donors, any deed of trust transgressing reasonable limits might be set aside. But unless and until set aside or rectified, such a deed had to be treated as decisive of the trusts which were to regulate the charity: Attorney-General v Mathieson [1907] 2 Ch 383 and Shergill v Khaira [2015] AC 359 considered.
(2) Where a contract had been made in writing, the court’s task was to ascertain the objective meaning of the language which the parties had chosen to express their agreement. The parties’ subjective intentions were immaterial. The same principle applied to deeds establishing trusts: Lifetime settlements were no different from other documents in that the subjective intentions of their authors were irrelevant: Wood v Insurance Services Ltd [2017] AC 1173 considered.
However, where a contract was based partly upon oral exchanges and conduct, a party might have a clear understanding of what was agreed without necessarily being able to remember the precise conversation or action which gave rise to that belief. The evidence of a party as to what terms they understood to have been agreed was some evidence tending to show that those terms, in an objective sense, were agreed. The tribunal might reject such evidence and conclude that the party misunderstood the effect of what was being said and done. But when both parties were agreed about their mutual obligations, it was a strong thing to exclude their evidence from consideration. Evidence of subsequent conduct, which would be inadmissible to construe a purely written contract might be relevant because it showed what the parties thought they had agreed: Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd [1970] AC 583 and Carmichael v National Power plc [1999] 1 WLR 2042 considered.
(3) An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it was satisfied that they were plainly wrong. The word “plainly” did not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It did not matter that the appeal court considered that it would have reached a different conclusion. What matters was whether the decision under appeal was one that no reasonable judge could have reached. An appeal court was bound, unless there was compelling reason to the contrary, to assume that the trial judge had taken the whole of the evidence into his consideration. The mere fact that a judge did not mention a specific piece of evidence did not mean that he overlooked it. The trial judge had to consider all the material evidence, although it need not all be discussed in his judgment. The weight which he gave to it was however pre-eminently a matter for him. An appeal court could therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable: Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26, Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 and Volpi v Volpi [2022] EWCA Civ 464; [2022] PLSCS 65; [2022] 4 WLR 48 considered.
(4) Applying those principles in the present case, the matters to which the judge referred provided an entirely adequate basis for his conclusion. There was no question of his decision being one that could not reasonably be explained or justified.
David Holland KC and Ted Loveday (instructed by Herbert Smith Freeehills LLP) appeared for the appellants; Mark Sefton KC and Jonathan Fowles (instructed by Mishcon de Reya LLP) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Mohammed and others v Daji and others
