Solad Sakandar Mohammed & Ors v Sabir Ahmed Ebrahim Daji & Ors

The court applied ordinary principles of charitable trust construction: the intention of donors is to be ascertained objectively by reference to the terms on which they made gifts and the factual background known to them. The judge held that the £1.4m raised to acquire Abbey Mills had been raised by and from the London Tablighi Jamaat community for a London markaz, and not for the Dewsbury Trust. The land was therefore held on the terms of the 1996 Declaration of Trust (the "London Trust") rather than the 1975 Dewsbury Trust. The court also held that the alleged late use of Dewsbury’s name on bank accounts and receipts did not alter donor intention and that the 1996 Declaration of Trust, even if executed after completion, was within the scope of the authority implied by the donors.

Separately, the court found that one trustee (D14) had been validly removed and replaced under the trust deed and the Trustee Act 1925 because he was refusing to act and the procedural steps to remove and appoint a trustee were properly taken. The cy-près application under section 62(1)(e)(iii) Charities Act 2011 was not determined because the property and removal claims succeeded.

Background and parties: The dispute concerned ownership and control of Abbey Mills mosque (the Land). The registered proprietors were recorded as trustees of Anjuman-e-Islahul of (London) U.K. The Claimants sought a declaration that the Land is held on the trusts of a 1996 Declaration of Trust (the London Trust). The LBMW Defendants counterclaimed that the Land was held for the Dewsbury Trust under a 1975 Declaration of Trust. The Claimants also sought removal of one trustee (D14) and, in the alternative, a cy-près declaration under s.62(1)(e)(iii) Charities Act 2011.

Nature of proceedings and issues: This was a first instance trial before HHJ Cadwallader (sitting as a High Court judge). The principal issues were: (i) the objective intention of donors who contributed the ~£1.4m purchase money; (ii) whether the purchase monies were held for the London trust or the Dewsbury Trust; (iii) the origin, date and legal effect of the 1996 Declaration of Trust; (iv) the significance of documents signed in 1998 and 1999; and (v) the validity of the replacement of D14 as trustee in 2018. The cy-près question was reserved for determination only if the property claim failed.

Evidence and approach: The judge received extensive oral and hearsay evidence from many witnesses and summarised the approach to evaluating such evidence in the context of distant events (citing Kimathi and authorities). Documentary evidence included loan books, receipts, bank mandates, solicitor correspondence and charity accounts. The judge treated donor intention as the pivotal legal question and scrutinised contemporaneous documents, bank records and the pattern of fund-raising and ownership of other markazi.

Court’s reasoning:

• The facts showed the Abbey Mills fundraising and donations principally originated from and were organised by the London community for a London markaz; donors expected local control and primary local use unless told otherwise.
• There was no consistent pattern that Dewsbury owned or controlled all UK TJ properties; Dewsbury’s accounts and other title documents showed no general proprietary hold over other markazi.
• Use of the Dewsbury Trust’s name on a bank account and some receipts was deliberate, convenient and intended to reassure third parties, but did not convert donor intention; contemporaneous conduct and the identity of trustees (C1, C2 and D14) pointed to a London trust.
• Even if the 1996 Declaration of Trust was formally executed after completion, that did not invalidate the pre-existing charitable trust constituted by the donations and loans; the deed was within the authority implied by the donors and, in substance, declared the trusts on which the funds had been applied.
• On the removal claim, the trustee (D14) had effectively refused to act; the other trustees followed the procedural requirements in the deed and applied powers under the Trustee Act 1925 to remove and appoint a trustee, and the appointment of C3 was effective.

Disposition: The court declared that the Land is held on the trusts of the 1996 Declaration of Trust, held that D14 was validly replaced as trustee and directed that the register be corrected appropriately. The cy-près claim was not decided because the primary property claim succeeded.

At first instance the court declared that the Land was held on the trusts of the 1996 Declaration of Trust (the London Trust) because the objective intention of the donors and lenders was that the funds raised by the London community be applied for a London markaz; the claimants’ property claim therefore succeeded. The court also held that D14 was validly removed and replaced as trustee because he had been refusing to act and the trustees followed the deed and statutory removal powers. The cy-près application was not determined as unnecessary.