Bhatti v Bhatti & Anor [2009] EWHC 3506 (Ch)

Case No HC08C00472[2009] EWHC 3506 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of JusticeDate Thursday, 26 th November 2009
Strand
London WC2A 2LL
Before
SIR EDWARD EVANS-LOMBE
Between
DABIR AHMAD BHATTIClaimantSAFIR AHMED BHATTI & KHALIDA SAFIR BHATTIDefendants
Digital Transcript of Wordwave International, a Merrill Corporation Company 101 Finsbury Pavement London EC2A 1ERTel No: 020 7422 6131 Fax No: 020 7422 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)
MR JONAS HOLMES-MILNER appeared for ClaimantMR PAUL HOLLAND appeared on behalf of Defendants
JudgmentSIR EDWARD LOMBE:
[1]This is an application for summary judgment in the following circumstances. All the parties to the proceedings are members of the Muslim Ahmadiyya Community in the United Kingdom. That community has a quasi judicial body for the resolution of disputes between its members. The body which decides disputes at first instance is called the QadhaBoard (and I will refer to that as level 1 or the Qadha Board). The Qadha Board has written rules of procedure of its own, which govern the process of deciding disputes brought to it. It is also guided in arriving at its decisions as to those disputes by certain principles which themselves derive from the religious background of the community. There are three levels of appeal from the Qadha Board. First (and I will call this level two) to the Appeal Panel Qadha Board UK, which is a UK based institution. Secondly, (and I call this level three) to the Murafia Aalia Rabwah, which is an institution situated in Pakistan and finally, the Supreme Appeal Board (level four) also situated in Pakistan. There is a body for the enforcement of orders made by the Qadha Board, which is called the Amore-e-Ama.[2]Counsel were unable to help me with what form enforcement might take where orders of the Qadha Board came to be enforced against a party who was not prepared to obey those orders. I can only presume that enforcement would be by taking measures in personam against the recalcitrant party by some forms of religious or community pressure. But one thing is entirely plain and that is, where the dispute in question concerns property and the order sought concerns a transfer of property, the Qadha Board would have no power, in the United Kingdom, direct a transfer of that property to comply with its orders. It appears that the Amore-e-Ama automatically enforces the orders of the Qadha Board either where that order is not challenged or when that order is appealed and in the form that results from the appeal unless in an exceptional case, where the supreme head of the community (I was told referred to as the Jamaat) directs that it shall not be enforced.[3]I revert to the parties in the dispute. The Claimant was originally a Mr Kabir Ahmed Bhatti (“Kabir”), who is now deceased, he having died on 9th February 2008 after these proceedings were commenced. The present Claimant is the executor. He had a number of children, including the First Defendant, Safir Ahmad Bhatti (and I will refer to him as Safir). There is also a Second Defendant joined after the proceedings were commenced who is Safir’s wife. She was joined because some of the properties in issue in the claim were purchased in the joint names of Safir and his wife.[4]The dispute concerns the beneficial ownership of certain properties in the United Kingdom. Those properties were bought by Kabir, as I have said, primarily in Safir’s name, but some of which were bought in the joint names of Safir and his wife. That application for summary judgment concerns five of those properties of which two are in the joint names of Safir and his wife.[5]On 24th September 2003 Kabir applied by petition to the Qadha Board dated 17th September 2008, for an order that Safir surrender the title deeds of all properties in issue to him, Kabir, plus any damages the Board might deem fit and I quote from the prayer in the petition. “Appendix A” to the petition was a list of properties to which it applied. It takes the form of a schedule of those properties. Included in that list are the five properties, the subject of this application, and the two further properties in the joint names of Safir and his wife being number 29 and 30 Cromwell Road. Also included in the claim are any sums of money which happen to be in bank accounts in the name of Safir, either in the Allied Irish Bank or in the First National Bank in Guernsey. It appears to be accepted that the destination of any sums found to be in those accounts will follow the destination of the properties, which are the primary subject of the proceedings. Safir was asked to consent to the matter going to the Qadha Board for decision and he did so by a document dated 2nd January 2004, which he signed. That document reads as follows, it is headed, “Consent to arbitration decision by Qadha Board in the case of...” The space left was not complete, but it is apparent that it relates to the properties here in issue. The document then continues:
“I the undersigned hereby agree to the dispute being decided by the Qadha Board of the UK Ahmadiyya Muslim Association by way of Arbitration. I consent to the application of the Ahmadiyya Fiquah, Islamic law and associated rules and principles to this dispute and agree to fully accept the decision and award of the said Qadha Board and I confirm that I will act upon any decision and award which is ultimately issued in accordance with the rules and traditions of the Ahmadiyya Jamaat.”
He then signs it and his signature is witnessed. At the bottom appears a footnote preceded with the words, “Please read the note before submitting this form” and the note reads:
“Before any dispute can be settled by the Qadha Board this consent is necessary. One effect of this is that the dispute may be treated, in municipal law, as a private conciliation and arbitration and may therefore also take effect at law.”
Prior to Safir signing that document Kabir had signed a similar document dated 24th September 2003.[6]The Qadha Board handed down its decision in this dispute on 1st April 2004. In doing so it decided in favour of Kabir, however, Kabir had or was at that stage limiting his claim to only three of the properties and it follows therefore, that the Qadha Board’s decision only related to those three. Nonetheless, Safir appealed that result to level two, the Appeal Panel Qadha Board UK. Before that body Kabir did mount a cross-claim, this time claiming to recover all the properties in question. There were nine of them. The Appeal Panel refused to allow him to do so. The Appeal Panel, however, dismissed the appeal of Safir, who appealed further to the Murafia Aalia Rabwah situated in Pakistan - level three. That body permitted him to expand his claim to cover all the properties which were in dispute, including those the subject of this appeal and it too decided in favour of Kabir. They did so in the following terms as appears in the final paragraph of the reasons given for the result:
“This Boardof Murafia Aalia Rabwah set aside the earlier decisions of lower Qadha Forums and holds that all (9) properties, the list of which appended with the petition before the Qadha Awwal as an Annex A [and I have already referred to that document], belong to Kabir A. Bhatti. Therefore, Safir A. Bhatti got no right to claim ownership of those properties and keep possession over the same. Mr Safir is hereby directed to surrender the Title Deeds and hand over the possession of all these [9] properties unencumbered. as well as the bank accounts of his father, Kabir A. Bhatti, within two months from the date of this decision.”
Safir appealed that order up to the final level of appeal, namely the Supreme Appeal Board - level four. That body handed down its decision on 6th September 2007 and they dismissed Safir’s appeal, the final paragraph of their reasons reading:
“After considering all the points raised by the appellant, it is decided that there was no legal or sharia shortcoming, in the decision made on 17/12/2005, so the appeal is hereby dismissed.”
It appears that Safir has not complied with the Qadha Board’s direction as to what should be done with the properties as that decision has ultimately emerged from the appeal process.[7]On 8th May 2006 Dr Munawar Ahmad Chaudhry, the secretary of the Umur ‘Ama, the body responsible for enforcing orders of the Qadha Board, wrote to Safir in the following terms, the letter is headed, “Implementation of Qadha decision in the case of Safir Ahmad Bhatti against Kabir Ahmad Bhatti.” The letter reads as follows:
“Please find enclosed a copy of the Qadha decision on your case. The decision has been passed onto this office for implementation. May I draw your attention to the last few lines of the decision i.e. ‘Mr Safir is hereby directed to surrender the Title Deeds and hand over the possession of all those nine (9) properties unencumbered as well as bank accounts to his father, Kabir A. Bhatti, within two months from the date of this decision.’ I should be grateful if you could please start appropriate proceedings to comply with the decision and let this office know about the progress. If you have any queries on the implementation aspects of the decision or you change your address or contact details, please contact this office (and a number is given). Your immediate cooperation in this matter will be highly appreciated.”
Later the same Dr Munawar Ahmad Chaudhry wrote to Safir on 7th October, a one sentence letter, in which he says:
“Please note that Jamaat’s instructions on the above case are that the parties may go to the civil court because of inherent complicated implications of the law of the land.”
That was followed on 14th October with a letter from a Mr Zahid Khan of the Qadha Board written to Safir:
“Thank you for your letter of 10th October 06 seeking clarification of the Qadha decision in view of the letter from Amoore-e-Ama which you had attached. Since the implementation of the decisions of the Qadha are carried out by Amore-e-Ama, I have had to seek further guidance on this issue. Since both parties have been given leave to go to the civil court to resolve their dispute, the implementation of the Qadha decision has been presently suspended. If the dispute is resolved to the satisfaction of both parties in the court then the Qadha decision will not be implemented. However if the dispute is not resolved through the civil court then the Qadha decision will be implemented. The decision of the Qadha has not been annulled but has been put on hold.”
I quote those letters, because they appear as part of the evidence in the case and reliance was placed on them in the course of argument before me. Your immediate cooperation in this matter will be highly appreciated.” The decision of the Qadha has not been annulled but has been put on hold.”[8]In the bundle of appeal documents appears a claim form. This cannot have been the original claim form, because it is undated, but this application for summary judgment is dated 26th July 2007. A number of admissions are made in the pleading by the First Defendant, Safir, to which I will now turn. In his defence Safir admits that there was an arbitration agreement to which he submitted, an arbitration agreement involving a dispute as to the five properties in issue in this summons and that is at paragraph 16 of the defence. Secondly, that the subject of the arbitration was the beneficial ownership of the properties, including those to which this summons relates. Thirdly, that a tribunal was appointed in accordance with the arbitration agreement and an award has been made and, that he took part in the arbitration proceedings before the Qadha Board and finally, that he has not performed the order which the Qadha Board made.[9]There is no substantial issue between the parties as to what the basic law applicable in this case is. The proceedings before the Qadha Board were in the nature of arbitration. That arbitration was to enforce a contract to submit disputes between consenting parties, members of the Ahmadiyya community, for decision. It was a term of the contract that the parties would carry out the decision of the Qadha Board, which in this case was an express term of the contract contained in the consent documents which Kabir and Safir signed. Whether such a contract for reference to arbitration exists is a matter of English law for this court.[10]In the circumstances described in this judgment I find that such a contract came into existence and part of its subject matter were the five properties in issue in this summons. The relevant tribunal, the Qadha Board and the appellate tribunal which dealt with the issue properly applied religious issues in arriving at their decisions and were guided in their procedure by rules prescribed by those courts. If the award that emerged from the Supreme Appeal Board’s conclusion was an enforceable award, then it is to be treated in precisely the same way as an award of an arbitration conducted in this country would have been and that award, if not complied with, can be made the subject of a claim for the enforcement of its terms against the party to the arbitration who refuses to comply with the award.[11]As I understand it, Safir accepts this. However, it is Safir’s submission that there was no enforceable award for basically two reasons. The first is that the decision of the Qadha Board was vitiated by the fact that Kabir was allowed to expand his claim from a claim to three properties only to a claim to nine properties by the level three appeal tribunal, which was then supported by the level four tribunal, namely the Supreme Appeal Panel. He says that that constituted a breach of the rules and an irregularity which vitiates the result produced in the award. He submits that that alone would be enough to render the award unenforceable, but also that the breach of the rules was so serious that the Qadha Board lost its jurisdiction to deal with the dispute as a result.[12]I cannot accept those submissions. I was not shown any relevant rules of the Qadha Board of which it could be said that the course which the level three appeal tribunal took in dealing with the appeals could constitute a breach. Certainly it would be possible for an appellate tribunal in England to follow a similar course in entirely English proceedings in an exceptional case. Anyhow, it is plain from the authorities cited to me that if the course which was taken by the level three appellate court, even if a breach of the rules, is to be categorised as a “procedural irregularity.” There is ample authority for the proposition that where a procedural irregularity takes place in the course of an arbitration and nonetheless the arbitrators produce an award, it is possible to bring an action to enforce that award, and obtain judgment notwithstanding that a procedural irregularity has taken place.[13]The submission by Mr Holland on behalf of the Safir that the Qadha Board had, as a result of this procedure, lost its jurisdiction to deal with the issue, is unfounded. It seems to me misconceived. The first submission made in opposition to the order fails.[14]I turn to the second submission. This is by reference to the three letters, the contents of which I have read in the course of this judgment. It is submitted that I should discern from the text of those letters that the Jamaat (that is the supreme leader of the community) had made a direction suspending enforcement of the award that had emerged from the appellate process. In support of that submission Mr Holland drew my attention to the report of a Pakistani lawyer brought to the court as expert evidence of Ahmadiyya law for the court’s guidance. The report was of a Mr Abdul Ghafoor Jhoongal dated 21st December 2007. That report confirms, if it needed confirmation, that the ordinary courts of this country can and will enforce an award of the Qadha Board which follows from proceedings in the nature of arbitration. However, it goes on to state that such enforcement would not be possible where the Jamaat had directed that there was to be no enforcement of the order, notwithstanding that the original order had been effectively affirmed by the Supreme Appeal Panel. I will assume without deciding, that that was a correct description of Ahmadiyya law. The Claimants have not filed any statement of Ahmadiyya law which contradicts what appears in Mr Jhoongal’s report.[15]That report, however, then continues to state that the Jamaat has in this case issued such a direction directing the Ahmadiyya Board not to enforce its award and that appears on the second page of the report where Mr Jhoongal says this:
“The Amore-e-Ama is not authorised to refuse implementation of Qadha decisions. The only time the Amore-e-Ama declines implementation is when a direction from the supreme head of the community is received. His decision is final and binding upon all Ahmadis. In this case also the Amoore-e-Ama gave directions according to the instructions received from the Supreme Head of the community. Both parties were directed to take their case (not decision) to the civil courts.”
And then later he says this:
“The letter of 7th October 2006 from the Amoore-e-Ama is a direct instruction from the supreme head of the community and therefore is a final instruction.”
There is no other evidence that the supreme head of the community has given a direction suspending enforcement of the award other than that which appears in the three letters. It is not the normal function of an expert to give evidence of fact. It is, of course, possible that an expert offering evidence of foreign law can also be simultaneously a witness of fact. It is most unusual, however, for that to be the case, but if he does so his evidence of fact must be supported by a description of how it comes about that he is able, from his own knowledge, to state that the facts were as he described them. Mr Jhoongal does not do that in his report. There is no reason at all why he, writing on 21st December 2007, should have personal knowledge of a direction given by the Jamaat suspending enforcement of this award. I do not know at what stage he was consulted, but there is certainly no evidence that he was consulted before the events which he purports to describe and how he is able to give evidence of those events.[16]I therefore fall back on such evidence as there is in the case of whether there was such a direction by the supreme leader and I have to say that if that evidence is confined as Mr Holland confined it, to the three letters, not only do they not constitute evidence that such a direction was given, they have, in my view, precisely the reverse effect. What the Jamaat appears to be doing is to give the parties permission to enforce the order in the civil courts in this country and suspending enforcement by the Amore-e-Ama pending that.[17]It follows, therefore, in my judgment, that Safir’s second contention as to why this award is not enforceable also fails. For these reasons, in my judgment, there is no reasonable prospect that the Safir can successfully defend these proceedings, which are brought to enforce the award which emerged from the Supreme Appeal Panel in the manner which I have described.