A3/2002/0588
Neutral Citation Number: [2002] EWCA Civ 709
IN THE SUPREME COURT OF JUDICATURE                                  
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(MR NICHOLAS WARREN QC, Sitting as a 
Deputy Judge of the High Court)
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                                  Monday, 29th April 2002
B e f o r e :

LORD JUSTICE ROBERT WALKER

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ASRAR AHMED
Claimant/Respondent

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(1) SURRIYA HASAN AHMED
(2) JAWAID AHMED
(3) ERIC ANTHUR GOODCHILD
(4) KAMRAN JAWAID AHMED
(5) SHAHZAD ZAFAR AHMED
(6) SUMAIRA AHMED
(7) THOMAS BYRON MORGAN
(8) PHILIP JOHN LOWE
(9) SHAHNILLA ZAINUB GULNAR AHMED SHAMSI
(10) TASWEER FATIMA AHMED
Defendants/Appellants
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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MR J NORIE-MILLER (instructed by Timms & Co, London WC2E 7NE) appeared on behalf of the 5th and 9th Defendants
The Respondent did not attend and was unrepresented
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J U D G M E N T
Monday, 29th April 2002
1.	LORD JUSTICE ROBERT WALKER: This is a renewed application for permission to appeal and for a stay of execution made on behalf of Mr Shahzad Zafar Ahmed and Miss Shahnilla Zainub Gulnar Ahmed, who are, respectively, the fifth and ninth defendants in proceedings in the Chancery Division brought by Mr Asrar Mohammed Ahmed. The applicants wish to appeal from an order, so far as it affects them, of Mr Nicholas Warren QC made on 1st March 2001 when he was sitting as a Deputy Judge of the Chancery Division.
2.	The deputy judge had to decide a very complicated property dispute in which most but not all of the parties are related by blood or by marriage. The general nature of the case appears from the first four paragraphs of the deputy judge's long, clear and thorough judgment, which runs to 97 paragraphs in all.
“This is a dispute principally between members of the Ahmed family but also involving a Mr Morgan and Mr Lowe about ownership of, and rights in, a number of properties in west London and in Brighton. The Claimant seeks vacation of cautions, possession of all the properties and an account of rents and profits over a period of years. He alleges a conspiracy between the defendants or some of them to set up false and bogus leases on very unfavourable terms to him as landlord, claiming that these leases are invalid or not binding on him.
Since many of the persons involved in this case share the family name Ahmed, I shall refer to the Claimant as “C” and to the defendants as “D1”, “D2” and so on.
D1 is the wife of D2. D3 has ceased to play any part in those proceedings, summary judgment having been obtained against him from Master Moncaster on 17 November 2000 and his appeal not having been pursued. D4 and D5 are the two sons of D1 and D2. D6 and D9 are daughters of D1 and D2. There are two other daughters of D1 and D2 whom I should mention, namely Monira and Habiba. C's wife, who plays no part in those proceedings, is D1's sister so that C and D1 are brother-and sister-in-law. D10 is D2's sister and they have a brother called Rizwan. Mr Khalid Hasan (“KH”), also known as Syed Hasan, plays an important part in these proceedings, although he is not a party. He is the brother of D1 and thus C's brother-in-law. D3, D7 and D8 are all acquaintances of D2 and have, at various times, claimed various interests in certain of the properties with which I am concerned.
I have heard oral evidence from each of the parties (other than D3) from KH, Habiba and Monira and also from D9's ex-husband Saeed Shamsi as well as Zinul Abedin Saghir, a friend of KH. I have found much of this evidence unsatisfactory. I do not propose in this judgment to go into the mass of detail which was put before me and which has led me to the view which I have formed of the various witnesses. I do, however, make the general observation that I am left with the overwhelming impression that D2's hand is to be found in every aspect of the property transactions with which I deal later and in every aspect of the conduct of this case, both in and out of court, in particular in relation to the provision of information on which many of the witnesses based their statements.” 
3.	I should add that the judge was also very critical of KH and said in terms that he had lied to the court.
4.	I shall, without any disrespect to the applicants, follow the deputy judge's method of referring to the parties; that is, I think, the simplest and quickest course. D5 and D9, a son and daughter of D2, claimed to have leasehold interests in a property in London, 35 Russell Road, which the deputy judge referred to as 35 RR. That house is of some historical interest since it was Jinnah's house. It was acquired by KH in 1993 on a mortgagee's sale, the mortgagor having been D2. However, KH acknowledged that he held 35 RR as a nominee for C. The deputy judge referred to a declaration of trust though it appears that there was no written declaration of trust in evidence. However, the deputy judge found as a fact that D2 knew from the start that KH was merely a nominee for C of 35 RR.
5.	Nevertheless, a bewildering series of leases and tenancies took place. In relation to 35 RR there were dispositions in favour of D5 on 11th May 1994 of parts of the house and of other parts in favour of D5 and D9 on 1st November 1995.
6.	D5 and D9 wish to contend on appeal that those were genuine transactions and binding on C when later on he became the registered proprietor of 35 RR. The deputy judge, particularly in paragraphs 65 to 75 of his judgment, held that the relevant dispositions were shams. He also held in later paragraphs of his judgment that even if they had any substance they were dispositions in breach of fiduciary duty and that D5 and D9, among others, were not purchasers for value in good faith without notice of the breaches of duty.
7.	These points are challenged in the appellant's notice and have been expanded in the skeleton argument and oral submissions of Mr Jeffrey Norie-Miller, who has said all that could possibly be said in support of his application. He has put in the forefront of his written and oral submissions the point made by Diplock LJ in his very well known judgment in Snook v London & West Riding Investments Ltd [1967] 2 QB 786 at 802 that:
“... for acts or documents to be a 'sham', with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a 'shammer' affect the rights of a party whom he deceived.” 
8.	Mr Norie-Miller has fastened on the deputy judge's finding in paragraph 89 that D5 and D9 were the “pliant objects of D2's will”. Nevertheless, counsel has submitted (seeking to make a virtue of the necessity that he cannot challenge the judge's findings of fact) the legal rights of D5 and D9 were unaffected. D2 might hope to persuade them subsequently to surrender their leasehold interests or otherwise waive their rights, but he could not, it has been submitted, compel them to act in accordance with his wishes.
9.	However, it seems to me that the deputy district judge dealt with this very point clearly and fully in his judgment. He referred not only to Snook, but also to National Westminster Plc Bank v Jones [2001] 1 BCLC 1998 and Hitch v Stone [2001] STC 214. Having set out the relevant principles of law, he then said in paragraph 75 of his judgment:
“I have found as a matter of fact that D2 and KH never intended any of the leases which they granted to give rise to rights and obligations enforceable against D2 in the event that he reacquired the relevant property. I also hold, if it amounts to anything different, that they intended to create rights and obligations different from those appearing from the documents ie no rights or obligations at all.” 
10.	It is true that in that passage the deputy judge identified D2 and KH as the parties with whose intentions he was concerned. However, in the light of his finding that D5 and D9 as children in an Asian family were the pliant tools of their father, it seems to me that the judge must have been satisfied that D5 and D9 had no different intention from that of their father, D2, whose hand was, as the judge found, present throughout all these transactions. I am not satisfied that there is an arguable ground of appeal here.
11.	If the applicants cannot succeed on that point, the other points raised in the appellant's notice would drop away, although I would add that I do not regard them as arguable either. The fact is that the deputy judge made a very careful examination of the whole of this discreditable saga and he gave a judgment which appears to me to be clear, thorough and impeccable. A large share of judicial resources has already been devoted to a detailed examination of D2 and KH's dishonest devices in which other members of the family have cooperated or acquiesced.
12.	An appeal would be hopeless and, despite all Mr Norie-Miller has said, I dismiss this application.
(Application dismissed; no order for order for costs).