ROBINA MALIK v. NIAMAT ALI
A4158/02
JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC
in the cause
ROBINA MALIK
PURSUERS
against
NIAMAT ALI
DEFENDER
Act: Wilson, Solicitor, Russells Gibson McCaffrey.
Alt: Atuahene, Solicitor, Atuahene Sim & Co.
GLASGOW, 12 November 2003.
The Sheriff Principal having resumed consideration of the cause, sustains the appeal and recalls the interlocutor complained of dated 3 June 2003; sustains the second plea in law for the pursuer and appellant under deletion of the words "and the action dismissed"; ex proprio motu repels the defences and grants decree de plano in favour of the pursuer and appellant; finds the defender and respondent liable to the pursuer and appellant in the expenses of the cause and remits the account thereof when lodged to the auditor of court to tax and to report thereon.
NOTE:
[1]The pursuer and appellant seeks decree for recovery of heritable subjects being flat 1/R, 95 Minard Road, Shawlands, Glasgow with a warrant for summary ejection. It is averred that the pursuer is the heritable proprietor of the subjects in terms of a Land Certificate which is produced. It is said that the pursuer permitted the defender to occupy the subjects on a temporary basis, has now required the defender to remove and that the defender has refused to do so. It is formally averred that "the defender is in occupation without right or title".
[2]The defences are in terms which are somewhat prolix. It is averred on his behalf - and appears to be accepted - that he entered into missives for the purchase of the said property and proceeded to pay the purchase price. He proceeds to aver that the pursuer's father requested him to arrange for title to the house to be taken in name of the pursuer to "facilitate" the pursuer's husband obtaining a visa in Pakistan in order to join the pursuer in Glasgow. It is said that:
"The pursuer is holding the property on behalf of the defender. The pursuer is by implication holding the property in trust of the defender temporarily until the pursuer's husband successfully obtained visa to join the pursuer in Glasgow (sic)".
[3]To an extent these averments are accepted by the pursuer who avers:
"It was determined that title to the property would be taken in the pursuer's name as she was engaged to be married to a Pakistani and if she were a property holder it would assist in obtaining a visa for her fiancé".
The pursuer goes on to aver, however, that the purchase price of £48,000 was repaid to the defender in Pakistan in the equivalent sum in Pakistani rupees on 16 May 2000.
[4]The case proceeded to debate before the sheriff. It was argued on behalf of the pursuer that the defences were irrelevant in that they sought to found on a verbal or secret trust which was not competent under the law of Scotland. The pursuer also founded on Section 1(2) of the Requirements of Writing (Scotland) Act 1995 which provides that the constitution of a contract or unilateral obligation for the creation, transfer, variation or extinction of an interest in land requires to be in writing. The sheriff rejected this argument and allowed a proof before answer. He appeared to hold that any obligation was not an obligation in relation to the property but was "collateral" to it. He said:
"The instrument whereby the trust is created does not relate to the land but land is the putative trust fund and in that case I think the allegations made by the defender in the pleadings that there is a verbal trust are capable of being established other than by writing".
[5]Since that stage the pleadings have undergone substantial amendment. Whilst the issue addressed at debate remains a live one a second issue has been introduced by the pursuer who has averred that esto the parties did enter into an agreement whereby title to the house was to be taken in name of the pursuer to facilitate the obtaining of a visa for her husband, such an agreement would be for an illegal purpose and therefore unenforceable. There is a plea in law referring to this alleged arrangement as a pactum illicitum.
[6]On this latter argument Mr Wilson on behalf of the pursuer and appellant referred to the cases of Jamieson v Watt's Trustees, 1950 SC 265 and Laughlin v Miller, 1904 6 F 413 in support of the submission that what the defender had averred "with remarkable candour" constituted an arrangement for an illegal purpose. There were no averments that the defender was under any form of compulsion to enter into the arrangement whereby title to the house was taken in the pursuer's name to mislead the relevant authorities into believing that she had a permanent home which her husband could occupy. Such averments were the only means by which the defender could avoid the consequence of the court holding that the arrangement was against public policy and in consequence unenforceable.
[7]Mr Atuahene's response did not in my view meet this point. He contended that the court could not reach the conclusion that the arrangement was illegal without hearing evidence and there was scope for the court concluding, at that stage, that in fact what was involved was a scheme on the part of the pursuer (or her father) to deceive the defender. It does not appear to me on a fair reading of the pleadings that the defender here has stated any defence other than that the reasons for the property being put into the name of the pursuer was in furtherance of the plan to facilitate the pursuer's husband's visa. I have sympathy with the proposition that this is an agreement which the court would not enforce and the pursuer's argument that this is an attempt by the defender to found on a pactum illicitum has much force.
[8]It is, however, unnecessary to decide the case on that point because I am in no doubt that the pursuer's original argument directed to the relevancy of the averments of constitution of a trust falls to be upheld. In my judgment there are no relevant averments of the constitution of a trust. As Mr Wilson pointed out the defender's averments are to the effect that any arrangement was entered into by the pursuer's father. There are no averments that the pursuer was aware of these arrangements or assented to them. On the averments as they stand, as Mr Wilson put it, "the putative trustee is wholly unaware of the terms in which he took the trust property". Whatever personal obligation may be incumbent upon the pursuer's father, and whether this gives rise to a remedy by way of damages or otherwise, there are simply no averments which support the proposition that there is any obligation incumbent upon the pursuer herself.
[9]The matter does not, however, end there because in my view the terms of Section 1(2) of the 1995 Act plainly require that the type of obligation on which the defender seeks to found must be constituted in writing. In terms of subsection 2(b) a written document complying with Section 2 of the Act is required for "the creation, transfer, variation or extinction of an interest in land otherwise than by the operation of a court decree, enactment or rule of law". I accept that there is some substance in Mr Atuahene's argument that this provision applies to conveyances and not to what might be described as a collateral agreement. The latter, however, is in my judgment caught by the provisions of subsection 2(a) which requires a written document for the constitution of "a contract or unilateral obligation for the creation, transfer, variation or extinction of an interest in land". As I have indicated it does not appear to me that the pleadings contain any relevant averment of the constitution of a trust in the hands of the pursuer or for that matter an obligation on her part to transfer her interest in the subjects. Even if they did such an obligation would require to be evidenced in writing.
[10]For the above reasons I am satisfied that the appeal falls to be upheld, the defences repelled and decree pronounced de plano. The pursuer and appellant is entitled to the expenses occasioned by the appeal including the expenses of the amendment procedure leading up to it and the expenses of the proceedings at first instance..