Case No. ZC14D01201

Mr Thakkar is the founder of Mara Group and Mara Foundation. Mr Thakkar started his first IT company in 1996 at the age of 15 in Uganda. Since then, Mr Thakkar has successfully driven the growth of Mara Group to become a globally recognised multi-sector conglomerate with investments in IT services, manufacturing, agriculture and real estate operations in 21 countries (of which 19 are African) that employ over 8,000 people….” 19.The Mara Group’s website offers the following description:- “Mara’s first company was founded by Ashish J Thakkar in 1996. Ashish began his career in business at the age of 15 by borrowing $5,000 to set up an IT company in Uganda. Within a year, he transitioned from a high school student to a full time entrepreneur. Since then, Mara has evolved into an international multi-sector business with operations and interests across 22 African countries. Ashish has successfully driven the growth of Mara by identifying opportunities to build businesses in under-served markets and by selectively partnering with international firms focussed on expanding in Africa. Among Mara’s credits include building the leading corrugated cardboard packaging company in Uganda (Riley Packaging), founding a Pan-African IT services company (Mara Ison) and establishing an African business process outsourcing company, operating in ten African countries (Ison BPO).” 20.One of the issues in the case is whether or not Regulations were issued in 2008/2009 for RBH Foundation. An unsigned document has emerged which provided:-(a)Jagdish, Sarla and Ashish as the initial beneficiaries, entitled to the assets and income during his (sic) lifetime [Article 1];(b)Following the death of all the three first beneficiaries, second beneficiaries would be entitled to enjoyment of the Foundation’s assets and its income. Meera would be entitled to 50% of the income as well as maintenance of living standards, housing and living expenses; Ashish’s children would be entitled to 50% of the Foundation’s assets and interest [Article 3];(c)If the above failed, Rona and Ahuti would benefit. 21.The reason that it is not possible to be certain as to whether or not these Regulations were issued is that all we have is a draft with certain gaps that was later amended in manuscript by Ashish. There is, however, no doubt that, on 26th January 2009, documents completed for Dresdner Bank listed the beneficial owners as Ashish, Jagdish and Sarla in that order. 22.Ashish and Meera became engaged to be married in July 2006. They married in Kampala on 27th September 2008. There are no children of the marriage. 23.By 2011, it is clear that the lawyers and bankers began to get nervous as to the lack of clarity in the structure and, in particular, the existence of the bearer shares. In August 2011, Mara’s Group lawyers, Conyers, Dill & Pearman requested KYC (Know Your Client) documentation identifying the beneficial owners of Mara. It appears that Ashish said he was “not comfortable” releasing this information. 24.The requests continued, initially sporadically but gradually gathering increasing urgency. On 10th June 2012, the solicitors said they required the information urgently. Amanda Heinrich of Fitrust sent an email on 12th June 2012:-“At the time the whole structure was set up, the idea was to keep the assets in the foundation for the family. Due to the fact that Home Management has the General Power of Attorney on the company Inspire Corporation Ltd, we are liable to our compliance department and therefore need to know what is going on and for what reason the new company is needed. Therefore, prior to incorporate (sic) a new company to the structure, I need to check with our compliance department and we need to give our approval to this transaction”.25.The same day, Ashish replied to the lawyer, Nitin Saujani “I think we need to change trustees”. Mr Saujani’s response to Ashish was that “you will get this everywhere now with new regulations. But let’s finish this and then maybe all can be transferred to the new ones dealing with Mara – for now provide the info – I am getting this with ALL reputable Trustees everywhere”. Ashish responds “ok…Let’s pls get this concluded then maybe we go meet them or get her to come see us…”26.On 13th June 2012, Noman Ltd said that it held the shares in Inspire on behalf of a Panamanian Foundation whose owners were Ashish and his parents but no Regulations were provided. On 14th June 2012, another lawyer, Atiq Anjarwalla wrote on Ashish’s behalf to Conyers, Dill and Pearman that the easiest way out of the impasse was to remove ownership from Inspire. It was said that the Mara Group would then be owned by another pre-existing BVI company, whose owner was Ahuti, who was based in Dubai.27.On 16th June 2012, Ashish wrote in an email that:- “Unfortunately, do [sic] KYC issues with my family trust, I’m having to put the holding of Mara Africa Holdings and Mara Investment Partners in a temporary structure called Midas which is owned by my sister, Ahuti for 2–3 months and then re-position in my structure once we’ve sorted out the issues”. 28.Originally, the shareholding in Mara Investment Partners Ltd was held equally by Ashish and Prashant with 25,000 shares each. In due course, another investor came into the structure and Ashish and Prashant’s interest was transferred to Mara Cap Investments. On 25th June 2012, 18,750 shares were transferred to Midas Touch Investments Ltd. It is clear that these shares were, to put it neutrally at this stage, the Thakkar shares. At the same time, 18,750 shares were transferred to Prashant. The Thakkar 18,750 shares were subsequently transferred to Mara Group Holdings Ltd BVI on 16th September 2012. The Thakkar shareholding in Mara Africa Holdings Ltd was also transferred to Midas Touch Investments Ltd on 25th June 2012 and, in September 2012, to Mara Group Holdings Ltd BVI.29.In June 2012, a private placement memorandum had to be agreed in relation to Mara Africa Opportunities SPC Ltd. Fawaz Elmalki, a solicitor at Conyers Dill Pearman drafted a passage that includes “Ashish J Thakkar is a beneficial owner of MGHL.” An email dated 21st June 2012 from Mr Elmalki says he had slightly modified the entire passage following information Ashish had sent him in the previous two days. Ashish sent the email to Prashant saying “This is ok right?”. Prashant replied that it was fine. 30.On 28th June 2012, Ashish made a number of manuscript amendments to the document containing the RBH Regulations. On 15th July 2012, these amendments were formalised and signed by the Foundation Council. The document says that “these regulations cancels (sic) and replaces the ones issued prior to this date” but that does not mean there were such formalised regulations before. Article 1 states that the first beneficiaries are Jagdish, Sarla and Ashish who “shall be solely entitled to the enjoyment of the foundation’s assets and its income during his (sic) lifetime, excluding any other beneficiaries”. Article 3 appoints the second beneficiaries after the death of all three of the first beneficiaries. Meera is to be entitled to 25% of the income of the Foundation’s assets as well as “maintenance of living standards, housing and living expenses that may occur”. Rona and Ahuti are to be entitled to 12.5% and Ashish’s children are to be entitled to 50% of “the foundations assets and interest”. 31.On 25th July 2012, Ahuti’s husband died suddenly. There is no doubt that he had complicated business affairs and had got himself into significant financial difficulties which Ahuti had been endeavouring to sort out on his behalf. Indeed, at one point he had been imprisoned in Dubai for a week for debt. 32.On 23rd August 2012, Hetal Shah of the Mara Group sent an email to Ashish, Prashant and two other employees of the Mara Group. It said, amongst other things:- “As to avoid in detail KYC for all existing account and upcoming account, we need to open MG main account with SCB. Asif will manage the KYC for the same and will manage to open account without submitting any paper for Inspire. We will just submit the declaration that Ashish J Thakkar is the ultimate beneficiary owner”. 33.Ashish replied “JSR very good, go ahead with you as main contact and other points too…”34.On 28th August 2012, the beneficial owners of Inspire Corporation SA were declared by Home Management Inc to LGT Bank (Switzerland) to be Ashish, Jagdish and Sarla. No percentage share was specified. 35.On 12th September 2012, Inspire Holdings Group Ltd was incorporated in the BVI. The legal owners were Sarla and Ahuti with 25,000 shares each. On 16th September 2012, 50,000 issued shares in Mara Group Holdings Ltd were transferred from Inspire Panama to Inspire BVI. On 27th February 2013, Inspire Panama was dissolved.36.There is no doubt that the marriage got into difficulties in 2013 but there is a dispute as to the date of separation. Ashish says it was February 2013 whereas Meera contends for early 2014. Fortunately, I do not need to resolve that dispute.37.The third party minority interest in Mara Investment Partners Ltd was held by a United Arab Emirates company. On 10th April 2013, one half of this holding was transferred to Ashish and the other half to Prashant. On 15th April 2014, Ashish transferred these shares to Mara Group Holdings Ltd. 38.On 10th May 2013, Takecare Management Ltd declared on behalf of RBH Global Foundation that the beneficial owners of the assets deposited with LGT Bank, Geneva, are Ashish, Sarla and Jagdish. In relation to account number 2825133, they were declared as having a beneficial entitlement of 33.33% each. On 30th July 2013, a letter of comfort was provided by RBH Foundation to Ashish stating that he can dispose of $250,000 from the RBH Global Foundation account number 2825134. On 14th December 2013, Ashish transferred 30,000 share in Riley Packaging Uganda Ltd to Corpack Uganda Ltd, a company within the BVI structure. 39. Meera filed a petition for divorce on 27th June 2014. Decree Nisi was pronounced on 30th July 2015. I refused an application by Ashish to make the Decree Absolute on 8th June 2016. Meera’s Form A is also dated 27th June 2014. Ashish was not served until 8th July 2014. The following day, Jagdish signed a request to the Board of RBH Global Foundation that all the remaining assets should be transferred to his personal account in Dubai. The document makes it clear that the Foundation would be dissolved after the distribution due to lack of assets. Ashish signed on 28th July 2014 and Sarla also signed although I cannot read the date of her signature. The Foundation was indeed dissolved on 10th September 2014.40.Ashish’s Form E was sworn on 10th September 2014. It gives his net assets as being £445,532. It makes no reference at all to the RBH Foundation and its dissolution is not noted in Box 4.1.1 which requires details of significant changes in assets or income during the last twelve months. There is no explanation as to the way in which the Mara Group is held and no reference to the BVI structure. 41.His first Replies to Questionnaire are dated 11th December 2014. He was asked about Mara Group Holdings Ltd. He said he did not have a beneficial interest in this company and he had never had a legal or beneficial interest in it. He said that it had been agreed that he would be a legal shareholder in Mara Online Ventures Ltd to give investors comfort that he would be actively involved but one of his cousins was spending all of his time on the company and so he was the beneficial owner. 42.My copy of his third replies are undated but I believe they were filed on 9th February 2016. They say the following:- “RBH Foundation was set up by Sarla Thakkar, the Respondent’s mother and Ahuti Chug, the Respondent’s sister in 2008. Inspire Corporation SA was set up through the vehicle of the RBH Foundation as a holding company with bearer shares. However, the Respondent understands that Ahuti Chug’s husband required her to stop being a shareholder because his own business was in financial difficulty. The Respondent’s father, Jagdish Thakkar agreed to stand as a shareholder in place of Ahuti Chug. However, the Respondent’s father also wanted there to be an additional younger shareholder because of his and Sarla Thakkar’s ages. The Respondent’s father wanted the Respondent to hold the bearer shares on the basis that Ahuti was beneficially entitled to them. There is no documentation in relation to this as it was a family arrangement. On 25 July 2012, Ahuti Chug’s husband died suddenly and unexpectedly. Thereafter, along with the Respondent’s mother, Ahuti transferred the assets of Inspire Corporation SA to the newly formed Inspire Holdings Group Limited. The Respondent does not have and never has had any legal or beneficial interest in Inspire Holdings Group Limited and is not a director and never has been.”43.On 28th October 2015, Barry Goodman (MD of Trident Trust Company BVI Ltd) swore an Affidavit saying that, to the best of his knowledge and belief, the beneficial owners of Mara BVI are Sarla and Ahuti. He exhibited a declaration made to the authorities in the BVI showing Sarla and Ahuti as the beneficial owners.44.On 11th November 2015, Meera filed a statement in support of an application to join Sala and Ahuti as parties to the litigation. She said that Ashish had always led her to believe that he was the ultimate beneficial owner of the Mara Group and she was unaware of Sarla having any involvement. She said she understood Ahuti signed documents at Ashish’s request. The same was true of Rona, until she, Meera, assumed Rona’s role.45.On 20th November 2015, I directed the hearing of this preliminary issue with a five-day time estimate. After the application had been served upon them, I joined Sarla and Ahuti as Second and Third Respondents on 11th March 2016. I made directions for pleadings, namely points of claim, defences and a reply.46.Meera’s Points of Claim, served in April 2016, are straightforward. She says that Ashish was the founder of Mara. He is the driving force behind it and he is the ultimate beneficial owner of the shares notwithstanding the legal title. I remind myself that, at the time these were filed, the various versions of the Foundations regulations had still not emerged. 47.The Defence of Sarla and Ahuti is dated May 2016. It denies that the Points of Claim disclose any cause of action or arguable case pleading that it is so vague that it cannot be discerned. No admissions are made as to Ashish’s role in the Mara Group. It is said that the effect of the 2012 restructuring was to vest the legal and beneficial interest in Ahuti and Saria. 48.Ahuti replied to a questionnaire served by Meera on 30th June 2016. Sarla adopted Ahuti’s replies. Ahuti repeated that, during the period that the RBH Foundation was in place, it was necessary to shield her interest from her deceased husband’s creditors. She said that this arrangement was hidden from the family lawyer, Nitin Saujani, because she was worried about confidentiality as they had a number of mutual friends. She added that Mara originated from various businesses started by Sarla and Jagdish and, in 2008, they sought to transfer part of their beneficial interests to the younger generation. They determined the transfer should be to Ahuti but Ashish replaced her as nominee due to the position of her husband. 49.Ashish’s defence is dated 29th September 2016. He pleads that Mara Group Holdings Ltd has been and remains the legal and beneficial owner of the Mara Group. The beneficial interests in the bearer shares of Inspire Corporation Panama were held by RBH Global Foundation which was owned by Jagdish as to 1/3rd, Sarla as to 1/3rd and him as to 1/3rd but he held his 1/3rd on trust for his sister. He denies that the 2012 restructuring was his sole decision.50. He filed his third witness statement on 29th September 2016. He accepted that he was the founder of the Mara Group and is its figurehead so far as the rest of the world is concerned but said its origins were in the commercial activities of his parents. He said that Ahuti works tirelessly for Mara. She deals with much of the administration and management/finances. He adds that his mother, Sarla, is actively engaged in Mara’s offices and deals with its bankers. His father, Jagdish, is Chairman and manages the finances. His sister, Rona is also deeply involved. He says that he could not tell anybody involved in the Panama structure that he was holding his interest for Ahuti to protect it from her husband’s creditors. He did, however, indicate that he was prepared for Mara to be treated, for this litigation alone, as being a resource available to him to the extent of one-fifth. This was calculated on the basis of all five members of the family (Jagdish, Sarla, Rona, Ahuti and himself) as having an equal interest. 51.Ahuti’s statement is dated 3rd October 2016. She refers to the birth of her daughter on 30th October 1998, so she is now aged 18. Ahuti says she moved to Dubai in May 2000 and withdrew from business at any visible level due to pressure from her husband. She says she knew she was regarded as having an interest in the RBH structure but she did not know it was 1/3rd. After the death of her husband in 2012, her interest did not have to be secret. By giving the shares to her and her mother, Sarla, “the old guard” and “the next generation” were both represented. Her father, Jagdish and Ashish did not have an interest although they regarded the business as being “for the family as a whole”. She and Sarla were chosen as they were regarded as safe investors whereas Jagdish and Ashish were risk takers. The current structure, therefore, maintained the equilibrium. Ahuti did not return full-time operationally to Mara until November 2014. Ashish remains the front man but all decisions are taken jointly with Jagdish and Sarla as the ultimate decision makers and controllers. She said that her mother would not file a statement nor attend court. She is not in the best of health and finds the proceedings distasteful.52.Jagdish’s statement is dated 3rd October 2016. He is the Chairman of the Mara Group. He describes Ahuti as Executive Director. He says she and Ashish worked together from the outset. She dealt with the suppliers and credit control whilst Ashish dealt with sales. Sarla was always asked for her opinion as she was the voice of reason. He said that the shares were divided into two for each household, namely Sarla’s for herself, Jagdish and Ashish whilst Ahuti’s were for Ahuti and her daughter, Ashish courts media attention so it was appropriate for him to describe himself as the owner of Mara but the legal ownership is in the safe hands of Sarla and Ahuti. Ashish is the CEO. 53.On 2nd November 2016, I determined that I did not have the power to compel Sarla to file a statement or attend to give evidence. I indicated that I would have done so if I had power to do so.54.Finally, Meera filed a statement on 9th November 2016. She said that Ashish’s autobiography, “The Lion Awakes” shows that the rest of his family played no significant part in the development of the Mara Group. Ahuti’s daughter was never named in any RBH document whilst Ashish’s family took precedence following the death of the three first beneficiaries. She questioned the transfer of Mara Holdings Africa to Ahuti’s structure, Midas given that her husband was still alive at the time. She said that Ahuti had been very successful running her own real estate brokerage business but her business was entirely unconnected to Ashish’s business.