Mustafa & Anor v Hussein & Anor [2001] EWCA Civ 1593 (18 October 2001)

Neutral Citation Number: [2001] EWCA Civ 1593 A3/2001/0958 IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION (Mr PW Smith QC (sitting as a deputy High Court judge)) Royal Courts of Justice Strand London WC2 Thursday 18th October, 2001 B e f o r e : LORD JUSTICE CHADWICK ____________________ (1) YUSUF MUSTAFA (2) KEMAL SEFER Claimants/Respondent - v - (1) ELHAMIYE HUSSEIN First Defendant (2) CEMAL GURSEL HUSSEIN Second Defendant/Applicant ____________________ (Computer Aided Transcript of the Palantype Notes of Smith Bernal Reporting Limited, 190 Fleet Street, London EC4A 2AG Tel: 020 7421 4040 Official Shorthand Writers to the Court) ____________________ THE APPLICANT appeared on his own behalf THE RESPONDENT did not appear and was not represented ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LORD JUSTICE CHADWICK: This is an application for permission to appeal against an order made on 28 January 2000 by Mr Peter Smith QC, sitting as a deputy judge of the High Court in the Chancery Division, in proceedings brought by Mr Yusuf Mustafa and Mr Kemal Sefer against Mr Sefer's mother, Mrs Elhamiye Hussein, and her son, Mr Cemal Gursel Hussein, in relation to the beneficial ownership of property known as 33 Belmont Hill, Lewisham, south London. The second claimant and the second defendant are brothers. The first claimant is married to one of their sisters. The property is registered in the names of the first and second claimants, the first defendant and her deceased husband. The claim in the proceedings was that the two claimants had each contributed one-third to the purchase price of the property (which was purchased in 1981); the remaining one-third being provided, so they claimed, by the first defendant and her late husband. Accordingly, the proceedings sought a declaration that the beneficial ownership of the property was held in equal third shares. The defence was that the beneficial interests had been held by the four registered owners in equal fourth shares; that Mrs Hussein's husband's fourth share had passed to her; so that the beneficial interest were now in the proportions one quarter to the first claimant, one quarter to the second claimant and one half to Mrs Hussein, the first defendant. The judge held that the beneficial ownership was determined, as a matter of law, by an undated letter written in response to a letter of 10 April 1981 from the solicitors who had acted in the purchase. The letter of 10 April 1981 raised the query "... how the property is to be held by the four of you"; and went on to explain the difference between joint tenancies and tenancies in common. It asked: "Can you please let us have your instructions as to how the four of you wish the property to be held by you i.e. either as joint tenants beneficially or tenants in common in equal shares. We shall need this information before we can register the Transfer Deed at H. M. Land Registry." In apparent response to that enquiry, an undated letter was written: "Dear Sir Thank you for your letter dated 10th April. All parties involved in purchase of the above property have decided that the property should be held as tenants in common in equal shares. Yours faithfully" and there appear four signatures; which purport, at least, to be the signatures of the four individuals who were to be the registered proprietors. The solicitors must have received that letter, because they acted upon it when registering the property at the Land Registry. The effect of that letter was to vest equal one quarter shares in each of the first and second claimants, the first defendant and the first defendant's husband. The judge went on to find that the quarter share formerly vested in the late Mr Hussein had passed to his wife by a transfer dated 21 May 1996; and that Mrs Hussein had subsequently transferred both her own share and her late husband's share to the second defendant, Mr Cemal Hussein. So he declared that the property was held for the first and second claimants and the second defendant as tenants in common; the respective shares being a quarter, a quarter and one half. This application for permission to appeal is made by the second defendant, Mr Cemal Hussein. The order which he seeks appears at section 9 of the notice which he lodged on 23 April 2001. He now seeks a declaration that the property, 33 Belmont Hill, is owned by the first defendant in her own right and as successor to the title of her husband; and that the title at the Land Registry be amended accordingly. That is, of course, a different result from that for which the defendants were contending in the action. Alternatively, Mr Cemal Hussein seeks an order that the property is owned by the first and second claimants and first defendant, and is held on trust for him and Bilan Hussein. That, again, does not seem to have been a contention which was being advanced before the judge. The first point which has to be noted is that the Appellant's Notice is long out of time. The order was made on 28 January 2000; and the notice was filed some 15 months later in April 2001. The explanations for that are set out in section 10 of the Appellant's Notice. Mr Cemal Hussein says this: "The defendants who are unrepresented have only recently been able to locate the solicitor's ledger and building society account book referred to in paragraphs 4 and 5.2 above, and obtained the statement of Mrs Wilde referred to at paragraph 3 above, among other documents in evidence which will be referred to at the appeal and in all circumstances the defendants should be given an opportunity to advance the appeal which at least has a real prospect of success." There is no explanation as to why the solicitor's ledger and a building society account book could not have been obtained and put in front of the judge at the trial. The only basis upon which the judge's judgment could be attacked would be that he was wrong to reach the conclusion that the undated letter, in response to the solicitor's enquiry of 10 April 1981, reflected the intentions of the signatories to that letter at the time. The judge reached that conclusion for the reasons which he gave at the foot of page 8 in the transcript of his judgment: "The letter to which I have already made reference is signed by all the four owners of the legal title to the property. It is significant. It shows that they were agreeing to be tenants in common in equal shares. It is written in English and signed by the four of them. However, the circumstances, as to how it was written out, are significant. It was written out by Mr and Mrs Hussein's eldest daughter, Aieynal, who now lives in California. Huri and Ms Hussein both acknowledged that they would have expected her [Aieynal] to explain things to Mr and Mrs Hussein if they were in English." [Huri, I should add, is another daughter of Mrs Hussein] "Once English documents were explained by Aieynal, then Mr and Mrs Hussein would either agree to them or not. She did not give evidence but signed a witness statement, which was not served on the claimants until the opening of the trial. I allowed Ms (sic) Hussein to produce that witness statement and rely upon it, notwithstanding none of the hearsay procedures set out in what was the Civil Evidence Act 1968 had been complied with. I accept what she says in the witness statement about her writing out the letter and explaining it. It is a quite natural thing for a second generation child to do for her parents. I therefore conclude that Mr and Mrs Hussein signed the letter after it had been explained to them by Aieynal, and that they agreed to its terms and understood it. Accordingly I conclude that all four agreed, after full explanation and discussion, that the property was to be held by them as tenants in common in equal shares beneficially." That passage contains the basis upon which the judge reached the conclusion which he did. There is nothing in section 10 of the Appellant's Notice (or anywhere else in the Appellant's Notice) which suggests that the applicant intends to attack the evidence upon which the judge relied - that is to say, the evidence of his sister, Aieynal - nor why (if it is so alleged by implication) it took him 15 months to discover that Aieynal now wanted to give evidence to a contrary effect. Still, today, there is no statement - even in the most informal form - from Aieynal which suggests that her evidence upon which the judge acted is not reliable evidence upon which the judge was entitled to rely. Mr Hussein says that it is now quite plain to him that the letter on which the judge relied was not written by Aieynal at all; but was written by his brother, Kemal Sefer. That, of course, is a point which - if he had wished to make it - he could have put to Kemal Sefer in the course of the trial. Further, if he wanted to make the point good - he could have adduced expert evidence as to handwriting. The judge's impression of Mr Cemal Hussein's approach to litigation is set out at pages 6 and 7 of his judgment. He said this: "[Mr Cemal Hussein] accused Kemal [that is his brother] of theft, fraud, and perjury and, in effect, accused Yusuf [that is the first defendant] of perjury and lying when he said (that is to say Yusuf said) that he borrowed some of the purchase price from his father. Cemal asserted that all monies contributed by Yusuf came direct from Yusuf's father in repayment of the obligations referred to in the further and better particulars. What I have found surprising was that Mr Hussein suggested to me that the four solicitors knew all about these allegations, but suggested that they should be kept back and the claimants confronted with these allegations for the first time at trial." The four solicitors to whom the judge refers are, I think, is a reference to the solicitors who had been acting (successively) for the first defendant, Mrs Hussein, until her legal aid certificate was withdrawn shortly before the trial: "I find that surprising because the concealment goes to the pleadings, their witness statements, where no mention was made of these allegations." The judge continued: "... I reject any suggestion that Kemal's and Yusuf's shares were given by them in exchange for antecedent indebtedness. I also reject the suggestion that Kemal agreed to give his interest in 1985 in exchange for land in Cyprus. He produced copies of documents, in respect of the title in Cyprus, which showed all the family, both Mrs Hussein and all the children were registered as owners of the land. Cemal then said that these documents were forgeries because they appeared to him to have been written out by Kemal. This was another example of Cemal inventing things because it suited him. I pointed out to him that it appeared to me that the entries on the register were written in more than one form of handwriting, and he was constrained to admit that and withdrew the spontaneous and unrevealed allegation of forgery. This was one of his many wild and, in my view, unjustified allegations made against Kemal and Yusuf for the first time at the opening and during the course of the trial." The allegations now made in support of this application are further serious, but wholly unsupported, allegations; now as to the authorship of the letter on which the judge relied. In the light of the judge's findings as to Mr Hussein's readiness to make wild and unjustified allegations without foundation, I am not persuaded that I should act on the basis of these new allegations, in circumstances in which they are not supported but where it would be easy to support them by proper evidence if such evidence could be obtained from those in a position to give it. This seems to me to be an example of a case - not, unfortunately, unfamiliar in this Court - where a litigant, who has failed to persuade a judge of his case at trial, seeks to put before this Court further material which, if it were relevant, could have been put before the trial Court, in an attempt to have a further trial at which he can make different allegations in addition to, or in substitution for, the allegations which failed at the trial. That is not a basis upon which litigation can sensibly be conducted. I am not persuaded that this appeal would have any prospect of success on the material that has been made available. In those circumstances I dismiss the application. ORDER: Application for permission to appeal refused. (Order not part of approved judgment) BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII