Aslam Abbas v Shabir Hussain & Ors

A common intention constructive trust may arise where there is an agreement about property ownership, reliance on that agreement, detriment, and unconscionability in denying the claimant’s ownership. The claimant bears the civil burden of proving the agreement and any reliance or detriment.

Equitable relief may be refused for sufficiently serious misconduct closely connected with the remedy sought. However, the court must first determine the claimant’s substantive entitlement. In assessing disputed oral agreements, the court should consider contemporaneous documents, objective facts, missing evidence, overall probabilities and the witnesses’ motives, rather than relying uncritically on recollection.

The claimant, Mr Aslam Abbas, sought a declaration and relief concerning the beneficial ownership of land forming part of the former Tilt Hammer Inn. He alleged that an oral agreement in 2015 required the first defendant, his brother Mr Shabir Hussain, to transfer the disputed land to him after payment of an agreed sum.

The defendants contended that the agreement granted only an option to acquire the land for £250,000, which the claimant had not exercised or paid. They also relied on alleged misconduct connected with a later violent confrontation involving members of the claimant’s family.

The central issues were the terms of the 2009 and 2015 oral agreements, the payments made, whether the claimant had established a constructive trust, and whether equitable relief should be refused.

1. The claim was dismissed. The first defendant was ordered to repay the claimant £5,000.
2. The court applied the common intention constructive trust framework identified in Matchmove Limited v Dowding and Church [2016] EWCA Civ 1233. The claimant had to establish an agreement as to ownership, reliance, detriment and circumstances making it unconscionable for the defendants to deny the claimed ownership.
3. On the evidence, the 2009 arrangement treated Highgate and the business as a joint venture or equal partnership. The alleged £250,000 debt was inconsistent with the documents, the parties’ later conduct and the commercial probabilities. The 2015 agreement therefore provided for division of the properties, including transfer of the disputed land to the claimant, rather than an option to purchase it for £250,000.
4. The claimant failed to prove payment of the agreed £40,000. Apart from an undisputed £5,000 payment, the alleged cash payments were unsupported by contemporaneous documents, receipts, bank evidence or the evidence of witnesses who could have confirmed them. Applying the balance of probabilities, the court drew an adverse inference from the missing evidence. Since the claimant had not performed his side of the agreement, retaining the disputed land was neither inequitable nor unconscionable.
5. The court approached the witness evidence with substantial caution. It considered inconsistencies, shifting accounts, late evidence, documentary gaps, the effects of litigation on memory, and the need to assess the evidence as a whole rather than piecemeal.
6. The clean-hands issue was unnecessary to the result. Nevertheless, the court found that the claimant had not encouraged or incited the later violence. The alleged misconduct therefore did not provide an alternative basis for refusing relief.