Nazir & Ors v Haroon Rashid & Anor [2008] EWHC 3485 (Ch)

[2008] EWHC 3485 (Ch)Case No 5BM30173
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BIRMINGHAM DISTRICT REGISTRY
Civil Justice Centre
The Priory Courts
33 Bull Street
Venue Birmingham B4 6DSDate 16 th May 2008
Before
HIS HONOUR JUDGE PURLE, QC(Sitting as a Judge of the High Court)
Between
M. NAZIRClaimantsM. AZIMClaimantM. HANIFClaimantM. ASHRAFClaimantALLAH HAZRAT DIR HAROON-UR-DefendantsRASHID SAHIBDefendantH.M. ATTORNEY GENERALDefendant
Tape Transcription of Marten Walsh Cherer Ltd.,6 th Floor, 12-14 New Fetter Lane, London EC4A 1AG.Telephone No: 020 7936 6000. Fax No: 020 7427 0093
MR. JAMES QUIRK instructed by Hadgkiss Hughes & Beale appeared for ClaimantsMR. ANTHONY ALLSTON instructed by The Birmingham Legal Partnership appeared for Defendant Allah Hazrat Dir Haroon-Ur-Rashid Sahib.MR. GEORGE BRANCHFLOWER instructed by Treasury Solicitors appeared for Her Majesty’s Attorney-General.
JUDGMENT
[1]This is a dispute which has got a long history of coming and going before the courts concerning a mosque at 776 Alum Rock Road in Ward End. I shall not give its name simply because that may be taken to be pre-judging the issue but it is an Islamic centre and is the successor mosque of a previous mosque which had been acquired by public subscription from amongst the Muslim community by the followers of the first Defendant, a distinguished Muslim spiritual leader, Mr. Haroon Rashid, as he is known for short. That original mosque was at College Road and was eventually sold so as to fund in part the purchase of the existing mosque in Alum Rock Road, formerly the Capital Cinema.[2]The matter eventually came before Gibbs J on 12th December 2006. Gibbs J, as it were, took the bull by the horns and, having read the papers, sensibly persuaded the parties to at least start down the path of a resolution of the issues raised by this dispute.[3]It appeared that both the Claimants and the Defendants ultimately were contending that the mosque was the property of a charitable trust. It was not a charitable trust that had much, if anything, in the way of formal documentation, though on one side there had been produced trust deeds and a constitution. What is more, both sides agreed that the basic purpose of the trust was the promotion of the tenets of Islam and connected educational purposes.[4]The reason why the matter came to litigation is that in June 2003, by which time the original mosque had been sold and the new one acquired and developed as a mosque, there was a schism which developed between the existing management committee and, in particular, the first Claimant Mohammed Nazir and Mr. Haroon Rashid because Mr. Rashid sent over a replacement manager on a temporary basis from Pakistan and later that year a full time new manager was installed. Until then Mr. Mohammed Nazir had been the chief person, as I understand it, responsible for running the mosque. I hesitate to call him a manager because he was also the person who led the prayers as an Imam.[5]As I say, the matter came before Gibbs J on 12th December 2006 and he directed that a scheme be drawn up in relation to the charitable trust and that was to consist of the election of an executive committee and the appointment by the elected executive committee of trustees, such appointment to be subject to the approval of the court. There were provisions for the Attorney-General, who was also a party and is the second Defendant, to devise a suitable scheme for approval by the court.[6]As it happens, a total of three schemes have been put forward at various times and I am certainly not going to go through them all but two principal issues have emerged. The first is the electorate: who is to have a right to vote for the purpose of electing a committee? The second, which is, in one sense, a related matter, is the definition of the purpose of the trust for insertion in a related constitution. I shall deal with the second matter first.[7]The constitution has not been fundamentally different whichever version of the scheme has been in place. The present draft reads as follows:
“The objects of the Centre shall be: (a) The advancement of the religion of Islam [in accordance with the tenets and doctrines of the Sufi tradition of Islam]. (b) The advancement of Islamic teaching, training and education [in accordance with the tenets and doctrines of the Sufi tradition of Islam]. (c) The relief of such inhabitants of the Hodge Hill Parliamentary Constituency… as are poor and needy without distinction on the grounds of sex, or race, or political, or other opinions.”
No issue arises on (c). So far as (a) and (b) are concerned, the question is whether the words in square brackets should stay.[8]Elsewhere in the trust deed, in particular in clause 2(2)(a), there are references to the Sufi tradition in square brackets. Whether those words remain depends upon whether the reference to the Sufi tradition remains in the objects clause. I think it may well be that, apart from 2(1), the only other reference is in 2(2) but, if there are other references, the same observation applies.[9]As I have said, the evidence is that the funds for both mosques were raised by followers of Haroon Rashid from the Muslim community at large. It is, therefore, said that the object of the trust ought to be limited, not just to the Sufi tradition but by reference to the Haroonian Sufi tradition. Nonetheless, the evidence is also that the funds when raised were always intended to be applied for the benefit of the Muslim community generally, though in the form of a Haroonian Sufi place of worship.[10]In my judgment, the words in square brackets ought not to be included in the constitution and the object of the centre should be in general to promote the religion of Islam and so on and so forth, as set out in clause 2(1). It does not follow from that, of course, that the present Islamic centre will cease to be a place of Sufi teaching or even a place of Haroonian Sufi teaching and worship. I do that simply because the object of the trust is broader than that. It is simply that the means by which the trust should be carried out was contemplated as a Sufi and, indeed, even a Haroonian Sufi approach but I do not think that the contributors can be taken to have limited for evermore - and I am conscious that charities have perpetual status – the use of their contributions to that particular expression of the Islamic faith.[11]That deals with the question of the objects of the constitution. I, therefore, turn to consider the question of the electorate.[12]On that issue, the Attorney-General has put forward a scheme which, in broad terms, gives the vote to any adult Muslim in the Hodge Hill constituency. It is suggested on the part of the first Defendant that that should be limited to any adult Muslim in the neighbourhood, which he accepts should be the Hodge Hill constituency, who follows the Haroonian Sufi tradition. The fear, which I think is a real and genuine one, is that, as there are a very large number of variants of the Muslim faith within that constituency, to give everyone a vote who can call themselves a Muslim would leave open the risk of control of this mosque falling into inappropriate hands.[13]It is also suggested that a further class of voter should be those living outside the neighbourhood who have provided financial support for the centre during the last twelve months prior to the announcement of the election. An earlier version, namely, the first version of the scheme prepared by the Attorney-General, defined the electorate by reference to those who had been worshippers at the mosque since 2005 and those who had contributed to its funds.[14]I am conscious that I am now considering the election of a management committee who will, in turn, appoint trustees of the mosque. In my judgment, the focus must be on those who have been, or who are, or aspire to be worshippers at the mosque. Those who have been worshippers at the mosque but no longer wish to be worshippers at the mosque have no real interest in voting. There are, however, amongst those who worship at the mosque those who certainly regard themselves as Muslims but not necessarily Sufi Muslims and, even more, not necessarily Haroonian Sufi Muslims. The first Claimant, for example, who still worships at the mosque, regards himself as a Sufi Muslim but not a Haroonian Sufi Muslim. He undoubtedly was a follower of Mr. Haroon Rashid but, for reasons which it is not necessary to explain, is now disenchanted with him.[15]In my judgment, it is correct that all those who have in the recent past been regular or occasional worshippers should be members of the constituency. The question then arises as to what is to become of those who were but are no longer members of the constituency because, for example, they, too, have become disenchanted with the Haroonian aspect of the religion practised at the mosque?[16]In my judgment, it would not be right to enlarge the constituency by looking to the past. There is no solid evidence that people have deserted the mosque in large numbers. Those who wish to participate in the life of the mosque in the future can take up worship from today and at the time any election takes place can justify their status as voters as new, regular or even casual worshippers. I, therefore, do not think that it would be right to look back to the past and include those who have long since ceased to be worshippers at the constituency, nor do I think it would be right to include those whose connection with the mosque is simply the provision of money. There are many people who contribute to the funds of a charity without thereby assuming the right to control its affairs. Membership of a mosque, if it is to mean anything, must include being a member of the congregation. Those who choose to become a member of the congregation, whether they donate money or not, can vote in the forthcoming election. Those who do not wish to become members of the congregation are still free to give money but they will not vote. Accordingly, I am going to limit the constituency to members of the congregation who have been or become regular or occasional worshippers since 2005. I shall say January 1st 2005.[17]Another point which is now raised by Mr. Allston for the first Defendant is whether or not an organisation in Liverpool which, in effect, is an independent scrutineer of elections, should be involved. The Attorney-General has produced a scheme which involves that organisation, known for short as AEA, conducting the registration of voters and so on and so forth. Mr. Allston objects to aspects of that. In making that objection good, he points out that there is a significant element of older people in the congregation, many of whom do not speak or understand English, and who are also illiterate. The significance of that is that under the proposed scheme those who wish to register to vote have to write to the organisation in Liverpool. He says that this scheme needs to be adapted to the particular profile of the congregation. I agree. The evidence that he has given about that is not seriously challenged. It may well be that it will be possible to mobilise written applications but that sort of procedure has an element of the sometimes denigrated aspects of postal voting of which we have heard so much in a different context in the past, curiously, in relation, I think, to Birmingham as well.[18]I do not, therefore, whilst I commend the Attorney-General on the general suitability of the draft that has been put forward, consider that it is the most suitable solution for present purposes. I consider that something along the lines of the original scheme which had two respected members of other mosques acting as scrutineers should be put in place.[19]There is one other matter I wish to say about the constitution. The constitution appears to contemplate that the trustees will be elected. Although Gibbs J’s previous order was merely in relation to an interim scheme, I consider that what he had in mind must be suitable for long-term purposes. I do not think that the trustees ought to be elected. It will be for the management committee to appoint and remove trustees and to fill vacancies as and when they arise and the constitution should so provide.[20]Those, I think, are the points that I can usefully deal with today. Having given those rulings, which I would ask the parties through their counsel to record in some suitable formal of order, I shall stay the proceedings for a further period, hopefully to enable the final scheme to be put in place. - - - - - - - - - -