Southampton City Council v Southampton Medina Mosque Trust Ltd & Ors [2010] EWHC 2376 (Ch)

[2010] EWHC 2376 (Ch)

Case No HC08C03215

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 05/10/2010

Before

THE HONOURABLE MR JUSTICE DAVIS

Between

SOUTHAMPTON CITY COUNCILClaimant

SOUTHAMPTON MEDINA MOSQUE TRUST LIMITEDDefendants

MOHAMMED ASLAMDefendant

AFZAL DEADERDefendant

MOHAMMED ASHRAFDefendant

MOHAMMED ABDULLAHDefendant

THE ATTORNEY GENERALDefendant

Ms Caroline Shea (instructed by the Solicitor to the Southampton City Council) for Claimant

Mr Peter Smith (instructed by Johns & Saggar) for First Defendant

Mr Mohammed Aslam for Himself and the Fifth Defendant In Person

for The Third, Fourth and Sixth Defendants were not represented and did not appear

Hearing Hearing dates: From 12 th-16 th July, 19 th-23 rd July and 26 th July

Judgment

Introduction

[1]This case in essence involves the question of who is ultimately entitled to the ownership and powers of management of the new Medina Mosque in Southampton. I was told that this was one of the first purpose-built mosques to be constructed in the southern part of England. It is – although even now not complete, in particular in that the minaret remains to be constructed - a magnificent mosque. Upwards of a thousand people may attend for worship there on any particular Friday. Parts of it, moreover, are used for wider community purposes within Southampton. Its construction has taken many years and cost much money and effort and can be taken as a tribute to the contributions (in time, money and effort) of those individuals and organisations concerned.

[2]The site of the mosque itself is on land primarily provided by the Southampton City Council pursuant to a written Building Agreement (“the Building Agreement”) dated 29th April 1997. Sadly, the construction of the mosque, and the direction which its management should take, latterly became riven with bitter disputes and recriminations. Those who were once friends and who trusted each other have, in some instances, ceased to be friends or to trust each other. Factions have formed. There have been shameful incidents of altercations at the mosque; police being called; gates being locked so as to restrict access of worshippers; even, on occasion, actual violence at the mosque. The difference in views has proved to be irreconcilable and has led to these proceedings.

[3]That a court, necessarily applying principles of English law, has to resolve disputes of the present kind that have arisen is most unfortunate. A case of this kind in truth cried out for some kind of mediated solution. But that has proved unattainable. Southampton City Council, whose involvement I will come on to mention, tried valiantly over many years to bring about a consensus between the various groupings within the Muslim community in Southampton with regard to the mosque, to no avail. The matter was referred to the Charity Commissioners in 2003: they too made every endeavour to bring about a consensual solution, again to no avail. Further, in a detailed letter sent on 19th July 2010 (provided at my request) the Charity Commissioners explained why they had taken the view that a scheme was not an appropriate option for the Commissioners given the lack of consensus between the parties: and hence, in 2008, had felt constrained to give consent to the present proceedings. The Muslim Council of Britain involved itself, to no avail. Other attempts at achieving a negotiated solution have also failed. It was also made clear to me, on my own query at the outset of this trial, that compromise had ceased to be possible. The conduct of the trial itself – which has involved some senior and respected members of the community making public allegations of lying, bad faith, abuse of trust and so on against other senior and respected members of the community - will have done nothing to further any spirit of reconciliation and consensus. All this is much to be regretted, indeed deplored.

[4]This court case – whatever its result – can thus be said to be one in which, in one sense, there are no victors.

The Proceedings

[5]In point of form, the proceedings were commenced by claim form issued pursuant to CPR Part 8 on 13th November 2008, leave of the Charity Commissioners being given on the 7th August 2008. The Charity Commissioners had previously declined to give consent to pursue earlier proceedings issued in December 2003, in the hope that a consensual solution could be achieved.

[6]It has to be said that both the form of these proceedings and the case management of these proceedings prior to trial has left a lot to be desired. The claimant, Southampton City Council (“the City Council”), is neutral in these proceedings: it is in effect in the position of an interpleader simply wanting to know to whom (in the light of the disputes that have arisen) it should, under the terms of the Building Agreement, convey the mosque land which currently still remains vested in the City Council. It is perhaps understandable that it should have started these proceedings by way of Part 8 claim form. But thereafter the witness statements filed by the defendants have thrown up numerous disputes of fact. The true issues became hard to identify. But no pleadings were at any stage directed so that the relevant issues could be pinpointed: to a considerable extent they only became so during trial. In consequence, many of the witness statements were unfocused. Further, in point of form the proceedings only sought relief with regard to the identity of the persons who would execute the Instrument of Transfer required under the Building Agreement: but in point of reality the substantive dispute as between the defendants goes beyond that and in essence is as to the identity of the ultimate beneficial owners.

[7]The trial bundles themselves (6 large folders and with no Core Bundle or reading list or list of issues initially supplied) were in most inconvenient form, not separating out documentation by category, not always correctly paginated and not arranging all relevant documents in chronological order. Indeed many of the documents relied on were appended (as a selection) to various witness statements put in. Moreover it became evident that a number of potentially important documents had not been put in by various of the defendants: whether because they were lost or because their possible relevance was not appreciated cannot be known. In addition – as I will come on to explain – a number of important meetings seem not to have been minuted at all.

[8]I also had some initial concerns that not all the relevant parties had been joined. By way of example, one of those named as party to the Building Agreement, Mr Aziz Din Brora, was surprisingly not named as a defendant. In the event, he was fully aware of these proceedings and in fact gave evidence on behalf of the First Defendant. Another body, which as I will come on to say can be called the Razvia Trust, had for a considerable period vigorously indicated a claim to ownership and control of the mosque: but no representative defendant for the Razvia Trust was joined. However, I was shown documentation written on behalf of the Razvia Trust in December 2003 by which it was made clear that the Razvia Trust no longer pursued a claim in respect of the mosque: and that, as all agreed, had remained its position since. It, commendably, now is neutral: although it naturally has an interest (in the non-legal sense) in these proceedings and desires a resolution because of the ramifications for the wider Muslim community in Southampton; and indeed some of its trustees attended at the many stages of the hearing before me. Overall, I am satisfied that all relevant persons have been joined as parties or have had proper notice of these proceedings.

[9]At the trial, the City Council was represented by Miss Shea. As I have said, the City Council’s position was and is neutral. Accordingly, after the case was opened, it became apparent that the City Council’s further involvement at the trial would be productive only of unnecessary expense and Miss Shea and those instructing her sensibly availed themselves of my suggestion – agreed to by all – that they withdraw from further attendance during the trial.

[10]The true dispute in these proceedings has been between the First Defendant, Southampton Medina Mosque Trust Limited (“the Company”), a company limited by guarantee and incorporated on 8th March 2002 and which now is a registered charity, and the Second Defendant and Fifth Defendant, Mohammed Aslam and his father Mohammed Abdullah. The Company claims that the benefit of the Building Agreement is, in the events which have happened, held on trust for the Company. The Second and Fifth Defendants claim that the benefit of the Building Agreement is held on trust for the Southampton Medina Mosque Trust, a trust of which they say they, together with Mohammed Ashraf Cheychi and Mohammed Yasin (who both gave evidence before me), are currently the trustees.

[11]At trial the Company was represented by Mr Peter Smith of counsel. Mr Aslam represented himself and his father. The Third and Fourth Defendants (who I gather are son and brother of Mr Aslam) took no part in the proceedings, and indeed it was not clear to me why they had been joined as parties in the first place. The Sixth Defendant, the Attorney General, also took no part in the proceedings.

[12]Mr Aslam represented himself and his father with vigour and ability. He had a justified complaint about the state of the trial bundles. However, he knew the papers backwards and I am satisfied that he suffered no disadvantage. Mr Aslam is an experienced, well-educated and eloquent man. He has a degree and also a qualification in management accountancy. He also has, as he told me, experience of being a lay member in Industrial Tribunals. All the same, I had frequent cause to stop him from straying into irrelevancy (not matters irrelevant to Mr Aslam in his own perception but matters irrelevant to what I had to decide in these proceedings). Moreover on numerous occasions I felt it necessary to intervene in the course of cross-examination by him, both on grounds of irrelevancy and through concern that matters essential to the case were not clearly being put to witnesses for their observations and so requiring questioning from myself. I should record that Mr Smith very fairly indicated his consent to my taking such a course, as indeed did Mr Aslam.

[13]On behalf of the Company, evidence was given in writing and orally by Mr Rashid Brora, Mr Aziz Din Brora, Mr Bashir Ahmed, Mr Dildar Hussain and Mr Shaukat Ali. All were cross examined at length. On behalf of the Second and Fifth Defendants, evidence was given in writing and orally by Mr Aslam, Mr Mohammed Yasin, Mr Mohammed Farooq and Mr Mohammed Ashraf Cheychi: all of them also being cross-examined at some length.

[14]I briefly record my overall impressions of the witnesses.

[15]Mr Rashid Brora is an articulate and intelligent man, clearly one of the driving forces behind the Company and a protagonist at the time of the split with Mr Aslam. I thought his evidence marred in some respects by his evident mistrust of Mr Aslam and coloured by his subsequent perceptions. I would make the same comments with regard to Mr Aziz Din Brora, the father of Mr Rashid Brora, and Mr Ahmed, adding to the former (who gave evidence through an interpreter) a disinclination or inability to answer questions either shortly or directly. Mr Dildar Hussain and Mr Shaukat Ali were essentially reliable witnesses, but their evidence was only of limited value for what I had to decide.

[16]As to Mr Aslam, there can be no doubt about the passion or sincerity of his views. But that unshakeable conviction from time to time in my view operated in some respects to distort the reliability of his evidence as to events as they occurred at the time. Moreover he sought to justify some steps taken by him at the time by reference to technical provisions in the documentation; but found himself in some difficulties when that self-same documentation ran counter to other steps he took at the time. Mr Yasin presented as a dignified witness, but his evidence was marred by an evident desire to promote Mr Aslam’s case and by a speedy and unthinking readiness in evidence to advance propositions perceived to be supportive of that case. Mr Farooq I thought essentially reliable and genuinely attempting to give even-handed evidence and was one of the few witnesses readily (and plausibly) to say that he could not remember events going back many years. As for Mr Cheychi I thought in some respects his evidence too, as with Mr Yasin, was clearly marred by a desire to support Mr Aslam (his brother-in-law).

[17]On matters going back nearly 18 years clearly contemporaneous documentation is of particular importance. But in some respects documentation is lacking – either because meetings were not minuted (and the evidence showed that many meetings were not minuted) or because it has become lost or otherwise not available. However, a number of ostensibly very important minutes do exist, most of them prepared by Mr Aslam himself as chairman. I approach these with some caution. The style of drafting is self-evidently such as, in effect, to record Mr Aslam’s own narrative views or rationalisations of why decisions are recorded as having been made and it is difficult to think that they fully or accurately represent the debate actually occurring at the meeting, as opposed to Mr Aslam’s desired perception. Moreover Mr Aslam accepted that the minutes he made as chairman were not at that time (or any time) circulated to others or placed before the successor meeting for consideration and approval.

[18]I turn then to the sequence of events leading up to these present proceedings, and record my findings on those to the extent I consider necessary for what I have to decide.

The Formation of the Southampton Medina Mosque Trust

[19]By the early 1990s the Muslim community in Southampton had expanded considerably. There were a number of mosques in the city. One such mosque was operated by a trust that came to be called the Razvia Dar-Ul-Allom and Southampton Mosque Trust (“the Razvia Trust”). That mosque was on the site of a converted former garage and was far from ideal. Hence the decision was taken to seek a new site on which a new mosque could be constructed. An adjoining site, between St. Andrews’ Road and St. Mary’s Road, then being used as a car-park, was identified as viable: its owner was the City Council which, in principle, supported the proposal.

[20]It fortunately is not necessary to go into the constitutional position of the Razvia Trust. I was told that its members were at that time primarily made up of Sunni Muslims who were adherents of the Braillwe Sect.

[21]Mr Aslam worshipped at that time primarily with a mosque called the Jamia Mosque, which itself apparently operated under the name of the Southampton Mosque Trust. In 1992 in the temporary absence of the then chairman of the committee of the Razvia Trust (Mr Shah Moied) Mr Aslam was invited to be its temporary chairman. The indications are that the Razvia Trust was looking to widen its support in the community.

[22]It is clear that there arose some dissension within the Razvia Trust – in particular, Mr Shah Moied and a family called the Poswalls and others had ideas about the direction the new mosque should take; others including Mr Aziz Din Brora had different ideas. The upshot was that a new Razvia committee, intended among other things to deal with matters relating to the proposed new mosque, was elected on 7th and 12th December 1992, of which Mr Aslam was appointed the chairman (not now on a temporary basis). Members of the committee also included, among others, Mr Aziz Brora, Mr Rashid Brora, Mr Bashir Ahmed (since deceased), Mr Cheychi and Mr Yasin. The emphasis at that time was on there being a new mosque which was inclusive, for all Muslims in Southampton, and with a wider community function also. At a meeting of the committee on 22nd December 1992, according to the minute (prepared by Mr Aslam) a “change of title” was regarded as “essential”: and reference was also made to the need for a new constitution. On the 24th December 1992 the Razvia committee members were all authorised to start collecting funds from the community for the new mosque.

[23]On any view the cost was going to be formidable. But the purchase and construction was facilitated – in fact made possible – by the City Council agreeing to (and getting permission from the Department of Environment to) sell the site at a very substantial discount to its true market value.

[24]On 15th May 1993 there was a general meeting of the Razvia Trust. It is recorded in a minute prepared by Mr Aslam. There was some degree of dispute before me as to whether it accurately recorded what was decided: but I take the view, considering the evidence, that in essentials it does. That meeting resolved, as recounted in paragraph 1 of the minute:

“Approved the formation of the MEDINA MOSQUE TRUST, separate to Razvia Trust; Building agreement once reached with SCC for Land Transfer to be with Medina. Until then the two committees will work together for the good of both Trusts. Main aim is the ability to accumulate sufficient funds to show SCC our commitment”

The meeting also (as recorded in paragraph 3 of the minute) resolved on the membership of the committee for the new Medina Mosque Trust – including the election of Mr Aslam as chairman - and it was noted that it and the committee of the Razvia Trust would seek to work together for the common good. Thus it appears that from that time there were to be two committees, one specifically for the new mosque and one for the Razvia Trust: albeit the members of both committees were (at that time) mostly the same.

[25]Paragraph 2 of the minute reads as follows:

“MEDINA MOSQUE TRUSTEES – Confirmation of those appointed previously: Mohammad Abdullah Aziz Din Brora Tasib Khan Mohammad Aslam”

There is no extant record of the previous appointment purportedly so confirmed. A letter of 28th January 1993 from Mr Aslam to the City Council, however, had referred to there having been a recent general meeting of the Razvia Trust at which Mr Abdullah, Mr Bashir Ahmed, Mr Aziz Din Brora and Mr Tasib Khan had been appointed trustees for the new mosque project.

[26]There was a dispute before me as to whether Mr Aslam was so appointed a trustee. I find, accepting the evidence of Mr Aslam and other witnesses in this regard, that he was. It was undisputed that originally the first four trustees were to be Mr Abdullah (Mr Aslam’s father); Mr Aziz Brora; Mr Tasib Khan; and Mr Bashir Ahmed. But in March 1993 Mr Bashir Ahmed had died; and I accept that it was agreed by the members of the Razvia Trust that Mr Aslam be appointed a trustee in his place with regard to the new mosque as a temporary measure, pending assessment of whether a son, or other family member, of the late Mr Bashir Ahmed be an appropriate replacement. Mr Rashid Brora and Mr Aziz Brora disputed this, saying that it would never be agreed that two members of the same family be trustees. But in my view, on the evidence, the reality was that there was a shortage of volunteers for the potentially onerous role of Trustee. Moreover, Mr Aslam had by then already established himself as a driving force and it is clear that (whatever feelings now may be) he was at that time respected and trusted.

[27]The Medina Mosque Trust did not, however, formally come into existence at that time – indeed Razvia Trust notepaper continued to be used in connection with the proposed new mosque. The negotiations and discussions with the City Council and others were led, and principally conducted by, Mr Aslam – the City Council itself having no clear idea (and not needing to have any clear idea) as to precisely which body was eventually going to enter into any Building Agreement that may be concluded. But there did come a time when the City Council did wish to know details of the body which was going to acquire the land.

[28]To that end, a constitution was prepared based on precedents used in other comparable mosque cases. It was at all events in a form modelled on conventional precedents under English law. It states that the institution is to be called the “Medina Mosque Trust Southampton”. It records at its end that it was “formally adopted” on the 5th February 1994 by the persons whose signatures appeared. Those are 12 in number: they include, among others, Mr Aslam, Mr Cheychi, Mr Rashid Brora, Mr Aziz Brora, Mr Yasin and Mr Abdullah: that is to say, some of the committee members. The indications are, in the absence of contemporary minutes, that it was approved at a committee meeting. But there is no record, or other evidence, to establish that it was approved or adopted in a general meeting. It may well be that a copy was provided to the City Council at this time: a version of this constitution (albeit unsigned) at all events seems to have been sent by Mr Aslam to the City Council on 16th March 1994, together with a draft 5 year business plan.

[29]The evidence before me indicated that thereafter objections were raised in some quarters to aspects of this constitution: for example, the requirement of an oath of allegiance which the constitution called for. I suspect Mr Aslam himself was not too happy with it, for example in that its objects included the promotion in particular of the Braillwe Sunni Sect when he favoured a wider approach. At all events, Mr Aslam gave instructions to a lawyer acquaintance and a new form of constitution – in a very different style of drafting and with significantly different provisions – emerged by May 1994.

[30]The document, produced by Mr Aslam before me in photocopy form, is entitled “Constitution of Medina Mosque Trust Southampton”. It has 18 detailed clauses. Clause 18 itself makes provision as to the effect the constitution has “until the first annual general meeting takes place”. It states that the constitution was “formally adopted on the 22nd May 1994 by the Medina Mosque” (the date being written in manuscript). On its face it is signed by Mr Aslam and Mr Rashid Brora. Appended in the version placed before me is a copy of a list of other signatures, designed (as presented) to give the impression these were signatories to the document. On analysis it is clear that these are not signatories to the document itself but rather it is a separate signed attendance list of those committee members who had attended a committee meeting that day. I add that I asked to see the original. Mr Aslam rather unsatisfactorily was not able to produce it, although he did produce the original of the February constitution. Mr Aslam suggested that the original may be with his, or the mosque’s, former solicitors. As to the signature of Mr Rashid Brora, Mr Brora agreed that it looked like his signature but he disputed it was his. The insinuation is that someone (i.e. Mr Aslam) has forged his signature. I unhesitatingly reject that. I find that Mr Brora did sign it.

[31]The circumstances in which this constitution emerged were much debated in evidence before me. I am not sure, ultimately, that they are crucial to what I have to decide but I shall record my findings of fact.

[32]There are in the bundles typed minutes of two meetings of the “Committee of the Razvia-Dar-Ul-Allom and Southampton Mosque Trust”, one on the 2nd May 1994, one on the 22nd May 1994. Mr Aslam was present at neither, being recorded as being in Pakistan, as he accepts he was. Yet he also accepts that he was the one who prepared the minutes on his return. He says he did so on the basis of what he was told. I am prepared to accept that up to a point: but I am quite sure the minutes also contain Mr Aslam’s own after-the-event embellishments: indeed the language of the two minutes is in some respects identical.

[33]The minute of the 2nd May 1994 records the need for a new constitution and the “instructions of the chairman” to that effect. It records the document being before the committee for approval (“you have all seen it before”). It records it being agreed, subject to the views of the next committee meeting. The minute also contains this paragraph:

“The question on the replacement of Ch Bashir Ahmad (deceased) by his son Javed was raised again, as in past. It was decided that the constitution would not be altered and the matter of Trustee replacement would be considered at a later date after the document has been adopted. The selection of the fourth Trustee was not a priority issue at present and focus should be on the framework and details for the whole organisation.”

The (shorter) typed minute of the meeting of 22nd May 1994 is to similar effect: it also records that meeting agreeing to the constitution without changes being required.

[34]Mr Rashid Brora, Mr Aziz Din Brora and Mr Bashir Ahmed (of course different from the Bashir Ahmed who died in 1993) disputed that that constitution was placed before, or agreed by, the committee in May 1994. I do not accept that evidence. There clearly were meetings at that time. Further, at that time there was no reason for Mr Aslam to suppress the existence of this form of constitution from the committee. Yet further, I am simply not prepared to accept that these minutes are not simply embellished but in effect total fabrications on the part of Mr Aslam. I accept his evidence, and the evidence of Mr Yasin and Mr Cheychi, who are recorded as being present and say that they were present, that such a constitution was agreed then by those committee members attending: as is supported by the fact that Mr Rashid Brora (as I find), who was secretary, countersigned the copy, Mr Aslam having signed it on his return.

[35]Mr Cheychi revealed, however, and I find, that there was no real discussion of the document. Neither he, nor anyone else, kept a copy and he recalled no subsequent meeting at which it was referred to. My conclusion is that Mr Aslam retained the signed form of constitution. No one else was concerned to have a copy and he was not concerned to provide them (or anyone else) with one. At this time, as was my impression, committee members were content to leave such things almost entirely to Mr Aslam.

[36]Amongst various provisions of this document, the following in particular may be noted:

“3.1 Membership of the Medina Mosque shall be open to Muslims over the age of 16 years, provided they follow The Sunni Islamic Faith; and agree to abide by this constitution and its rules and regulations” … “7.3 Special Extra-Ordinary General Meeting (Special EGM) This will be specifically convened by the Secretary for the replacement of Trustees This clause shall apply after the completion of the Medina Mosque and in accordance with clauses 8.3, 8.4 and 8.5 No such meeting shall be convened in the intervening construction period A Special EGM shall be called in the same manner as an EGM” … “8.3 The First Four Trustees were appointed at a General Meeting from amongst the membership for the Land Title Deeds and the Building Agreement with Southampton City Council, they are: Mohammad Abdullah Aziz Din Brora Bashir Ahmad (deceased) Tasib Khan All future additions/ substitutions will be from Medina Mosque Committee Members Appointment shall be by agreement with the Committee and the existing Trustees of Medina Mosque” … “8.6.7 Removal by a resolution duly passed at an Extra-ordinary General Meeting called for the purpose by a majority of not less than two-thirds of the members voting at such a meeting A Trustee cannot be forced out of office without valid cause” … “8.7 Resignation / Removal 8.7.1 A trustee may be removed from office by Medina Mosque in an Extra-ordinary General Meeting called for this purpose 8.7.2 A Trustee may resign his trusteeship by notice to the Committee or in writing to the Secretary provided there are at least three (3) Trustees continuing The committee will attempt to fill such vacancies with reasonable haste, in the best interest of the Medina Mosque” … “8.9 Special Powers of the Trustees 8.9.1 The Trustees may require the Secretary to convene meetings of the committee ; or the general membership by majority decision upon giving at least 30 days written notice 8.9.2 The Trustees shall give notice in writing to the Secretary of their intention to dismiss the whole Committee and not selected members of that committee with at least fourteen (14) days notice with reasons” … “12 MEDINA MOSQUE – NEW BUILDING WITH COMMUNITY CENTRE This clause shall apply until the new building of the Medina Mosque is fully completed and officially opened and the Freehold Title Transferred to the Medina Mosque Trustee by Southampton City Council Alterations can only be made to this clause by a Special Extra-ordinary General Meeting 12.1 Trustees 12.1.1 Subject to the provisions of Clause 8.6 the first Trustees cannot be removed; however a trustee may vacate his position 12.1.2 Prior to the completion of the building, the Trustees cannot resign without replacement Trustees being appointed, such that a minimum of three are present at all times” … “17. DISSOLUTION 17.1 The Trust may be dissolved by a resolution passed by Three-Fourths majority of the members present in person and voting at an Extra-ordinary general meeting of which notice has been given specifying the terms of resolution to be discussed”

No such meeting shall be convened in the intervening construction period A Special EGM shall be called in the same manner as an EGM” Mohammad Abdullah Aziz Din Brora Bashir Ahmad (deceased) Tasib Khan 8.7.1 A trustee may be removed from office by Medina Mosque in an Extra-ordinary General Meeting called for this purpose 8.7.2 A Trustee may resign his trusteeship by notice to the Committee or in writing to the Secretary provided there are at least three (3) Trustees continuing The committee will attempt to fill such vacancies with reasonable haste, in the best interest of the Medina Mosque” 8.9.1 The Trustees may require the Secretary to convene meetings of the committee ; or the general membership by majority decision upon giving at least 30 days written notice 8.9.2 The Trustees shall give notice in writing to the Secretary of their intention to dismiss the whole Committee and not selected members of that committee with at least fourteen (14) days notice with reasons” 12.1 Trustees 12.1.1 Subject to the provisions of Clause 8.6 the first Trustees cannot be removed; however a trustee may vacate his position 12.1.2 Prior to the completion of the building, the Trustees cannot resign without replacement Trustees being appointed, such that a minimum of three are present at all times” 17.1 The Trust may be dissolved by a resolution passed by Three-Fourths majority of the members present in person and voting at an Extra-ordinary general meeting of which notice has been given specifying the terms of resolution to be discussed”

Tasib Khan

[37]There was, however, no sufficient evidence before me to establish, and Mr Aslam ultimately did not really contend, that that form of the constitution was ever placed before any form of general meeting of the membership for approval – indeed I am quite sure it never was (I suspect in fact that it was also perceived by Mr Aslam to be likely still to be objectionable in some quarters, especially by some of those connected with the Razvia Trust). At the same time, it at least clearly operated to supercede, conclusively, the February version of the constitution whatever status that had - which had been signed by some of the then committee members.

[38]The conclusion to be drawn, in my view, is that no valid constitution of the new mosque trust was ever adopted by the members, who at no stage knew of the terms or existence of either version or agreed to it. Nevertheless it does not follow that no unincorporated association, being the Southampton Medina Mosque Trust, came into existence. I conclude, on the evidence before me (and, I stress, in the absence of any evidence to the contrary from the Razvia Trust) that it did, and that had been so authorised by the general meeting of the Razvia Trust in May 1993 whose membership included the entire prospective membership of the new mosque trust. Further, it really ended up as common ground between the defendants before me, and as virtually all the witnesses said, that the membership could be taken as comprising any adult member of the Muslim community in Southampton who was interested in the Medina Mosque: and, as Mr Aslam himself said during cross-examination, any such person attending a meeting would be permitted a vote. No list of members, certainly, was maintained. Further, that there was a committee acting on behalf of the new mosque trust must have been known to and impliedly agreed by all such people (everyone before me agreed that word of mouth was accepted as an effective means of notice in the close-knit Muslim community in Southampton).

[39]As to quite when this unincorporated association, which was called the Southampton Medina Mosque Trust, came into being is not entirely clear. Some witnesses suggested that it was as late as 1997, when the conclusive schism with the Razvia Trust occurred. I do not think that is right. In my view, it is to be taken as 1994 when steps were taken to formalise the trust “separate from” the Razvia Trust. I say this notwithstanding continued use thereafter (up to 1997) of Razvia Trust headed note-paper with regard to the new mosque and in some respects the continued use of the Razvia bank account: this, I think, reflecting the perceived close connection between the Mosque Trust and the Razvia Trust at that time. It also seems, and I find, that from this time – at all events May 1994 - the committee with regard to the actual acquisition and construction of the mosque was operated separately from the committee of the Razvia Trust – even though there at this time continued to be a significant amount of overlap and shared interest and Mr Aslam (and others) continued to be involved as committee members of the Razvia Trust. In the meantime members continued to worship at the Razvia Mosque pending construction of the new Medina Mosque.

The Trustees of the Medina Mosque

[40]As I have found, Mr Aslam was appointed a trustee (by general meeting of the Razvia Trust in May 1993) for the new Mosque Trust, on an agreed temporary basis. In the form of constitution approved by the committee on 22nd May 1994, however, his name does not appear as a first trustee: rather it is the names of the same three individuals as before together with “Bashir Ahmad (deceased)” – the latter appointment of course, under English law, being a nullity as an appointment (no one suggested his executors were intended). Further the minutes of the meetings of 2nd May and 22nd May 1994 suggested that the “selection of the fourth trustee was not a priority at present”. Yet on 12th June 1994 Mr Aslam was writing (on Razvia Trust note-paper) to the City Council, saying that it was agreed that the new mosque and community facilities were to be in the separate name of a new trust to be known as the Southampton Medina Mosque Trust and stating “currently the trustees are M. Abdullah, A.D. Brora, Hajji Razzak (T. Khan) and M. Aslam (I am replacement for Bashir Ahmad deceased)”.

[41]So the question is on what basis had Mr Aslam so replaced the late Mr Bashir Ahmed.

[42]Both in his evidence and in his submissions Mr Aslam was vague on this. At one stage, he said that his “temporary” appointment (as summarised by the above) had by mutual consent continued: and the references in the minutes of 2nd and 22nd May 1994 to the selection of the fourth trustee not being a priority issue at present had been misunderstood. At another stage, he said that there had been a meeting at some time after his return from Pakistan and prior to his letter of 12th June 1994, which had not been minuted.

[43]I reject the second formulation. Not only is it not borne out by the evidence of other witnesses, it is also difficult to think Mr Aslam himself would not have minuted such a meeting. Nor does the first formulation readily accord with the minutes of the two meetings or with the contents of clause 8.3 itself. In my view, Mr Aslam simply wrote the letter to the City Council in this form of his own accord. But there was no bad faith in this, contrary to the insinuations of some of the First Defendant’s witnesses. At this time, Mr Aslam was looked to as, if not the, then at least a leader and a driving force. He was trusted. No one would have objected to his continuing to be a trustee (even though he was of the same family as Mr Abdullah) given that Mr Bashir Ahmed’s son was not, as it transpired, acceptable. In reality everyone involved at the time was content that he should continue to be a trustee. And, as subsequent events show, Mr Aslam was left to sign documents as a trustee. In my view, whatever the technical defects, he continued to act as a trustee, with the implied consent of at least the committee: and certainly was (in the phrase of Lord Millett) a de facto trustee.

[44]The evidence before me showed that there were regular committee meetings – sometimes once a month, sometimes more often, the practice being that they were informally convened. There was, however, no real evidence that any general meetings at all, as such, were held – although announcements would from time to time be made in the mosque and word of mouth was regarded as a main means of communication concerning the new mosque within the community. In the event there was before me a minute (prepared and signed by Mr Aslam but, in accordance with his practice, not circulated to anyone) of a “Medina Mosque Trust Special Extra-Ordinary General Meeting to appoint Replacement Trustee”, dated 10th December 1995 which followed a previous such meeting dated 12th November 1995. Such a heading connotes that Mr Aslam had the provisions of the May 1994 constitution document in mind. Those recorded as attending, including one observer, were 22 in number. The purpose of the meeting was, according to the minute, to appoint a replacement trustee for Mr Tasib Khan (also known as Hajji Razzak) who had resigned at a committee meeting of 22nd October 1995: for which latter meeting no minute was produced to me. The minute records that Mr Tasib Khan, with others, had joined what might in some eyes be considered to be a rival organisation called the Minhaj group. The minute records all present agreeing that Mr Cheychi, himself a committee member, be appointed a trustee. The minute also records: “All four trustees agreed to work together and stated that should a better person be forthcoming than [sic] a member of M Abdullah’s family would stand down to make way”.

[45]There was much dispute in the evidence before me as to this. Mr Rashid Brora, Mr Aziz Brora and Mr Bashir Ahmed (who were all present) denied that Mr Cheychi was so appointed or that Mr Tasib Khan had resigned. Mr Aslam, Mr Cheychi and Mr Yasin (who were also all present) say that matters were indeed as recorded in the minute. Mr Farooq – who I regard as the most disinterested of the relevant witnesses – said in evidence that he did not recall the meeting or Mr Khan’s resignation but said that he had understood that Mr Cheychi had become a trustee.

[46]Considering the evidence, I prefer that of Mr Aslam, Mr Cheychi and Mr Yasin on this and find that Mr Aslam’s minute is to be taken as essentially accurate, even if it contained characteristic embellishments. First, it really became clear on the evidence that there had indeed been a recent committee meeting when Mr Tasib Khan and his brother Mr Mohammed Younis had abruptly left the meeting and in spite of Mr Aslam’s remonstrations refused to return. I accept Mr Aslam’s evidence that Mr Khan made it clear at that time that he wanted nothing more to do with the committee or the trust of the new mosque. That also accords with what really was agreed to be the case – and anyway I find was the case – that Mr Khan had joined the Minhaj group at the time. Second, it was clear on the evidence and minutes that thereafter Mr Tasib Khan did cease to attend any meetings. To the extent that the Broras and Mr Ahmed said that Mr Tasib Khan may have stormed out of the meeting but did not actually, then or thereafter, resign as a committee member, or at all events as a trustee, I reject that. I find that he did so resign – albeit not giving notice in writing – and the resignation was accepted as such by the general meeting of 10th December 1995. That also accords with the discussion (as minuted) of the prior General Meeting of 12th November 1995.

[47]Thus, as I find, Mr Cheychi was elected as a trustee in place of Mr Tasib Khan by this general meeting. On the whole, I conclude that that meeting was appropriately convened as a general meeting by reference to the informal standards the community was content should be adopted. As to the point made, by Mr Aziz Din Brora in particular, that it would never have been acceptable for three members of the same family to be trustees, I think this was indeed acknowledged as not desirable (as the minute itself records); but the reality was, as Mr Aslam and Mr Cheychi said and I accept, that still no one else was willing at that time to be nominated for this potentially onerous role. Further, such meeting I find, in accordance with the terms of the minute, in effect acknowledged and ratified Mr Aslam’s own position as a trustee.

[48]I would, however, record that if (as was Mr Aslam’s own case) the Trust was now operating under, and bound by, the constitution of 22nd May 1994 then the appointment of Mr Cheychi in place of Mr Tasib Khan was not in accordance with the terms of that constitution, if only by reason of clause 7.3: because at this stage the mosque had not been completed, indeed building work had not even started.

[49]In the meantime progress for acquiring the site continued to be slow. Much needed to be done. There was regular contact with the City Council with regard to planning, building, grants and other issues, Mr Aslam undertaking virtually all of that on behalf of the Trust. I am satisfied that he did so with the knowledge and approval in general terms of the committee, who were more than content that he undertake this task. I also take the view that Mr Aslam kept the committee informed, in general terms, of the progress of discussions – which was, of course, a matter of importance for all concerned. In the event, on 28th July 1995 the City Council, by its relevant committee, had resolved to grant a building agreement to “the Southampton Medina Mosque Trust and Community Trust”. It is probable, however, that the City Council at the time believed this to be part of, or at the least closely connected with, the Razvia Trust.

[50]One particular problem – aside from problems such as raising from the local community and elsewhere the necessary funds – emerged. It seems that the design for the mosque had not included the correct configurations so as properly to align it with the Holy City of Mecca. It thus became necessary to acquire a small strip of land adjoining the car park site. That strip was owned not by the City Council but by Hampshire County Council. Negotiations were undertaken accordingly. The necessary Transfer was dated 11th March 1996. By it the Hampshire County Council transferred for £1 the strip of land to Mr Abdullah, Mr Aziz Din Brora, Mr Aslam and Mr Cheychi, described as “the Trustees of the Medina Mosque Trust Southampton”. The Transfer was signed by those four individuals (Mr Aslam in fact also signing on behalf of his father Mr Abdullah) in the presence of their solicitor: the Trust having, through the agency of Mr Aslam, retained the reputable local firm of Paris Smith & Randall to act for them.

[51]It is to be noted that the identity of the four named trustees coincides precisely with those acknowledged by the meeting of 10th December 1995. I heard some unconvincing evidence from the Broras and Mr Ahmed as to how this could be, given that they were disputing that Mr Aslam or Mr Cheychi had been appointed trustees. While I suspect some of the committee – such as Mr Farooq – had no clear idea as to who was signing the Transfer, I am satisfied on the evidence that the committee well knew that this Transfer was required and approved its being entered into on behalf of the Mosque Trust; and that the assumption was that it would be the trustees who would be signing it. Mr Aziz Brora gave particularly unconvincing evidence on this, and had difficulty in explaining his present position given that he had been present and signed as a trustee in the presence of Mr Aslam and Mr Cheychi who also signed, all three doing so in the presence of a solicitor.

[52]I add that in the correspondence there is a reference to a Deed of Grant relating to an easement concerning electricity entered into with regard to the mosque site by the Trust and the City Council and Southern Electric in around July 1996 (with Paris Smith & Randall still acting). No copy of such Deed, or of all the relevant correspondence, was placed before me. If such a Deed was executed (and a letter of 30th April 1997 suggests it was to be, the Building Agreement having been concluded) it is not clear who executed it on behalf of the Trust.

[53]In the meantime money was being earnestly sought. On various occasions, Mr Aslam directed that the monies collected – which to a considerable extent seem initially to have been put into a Razvia Trust bank account – be transferred from the Razvia Trust account to a separate bank account in the name of Southampton Medina Mosque Trust. Other payments with regard to the mosque were paid directly out of the Razvia Trust bank account on the instructions of Mr Aslam. This was to become later a source of great suspicion and friction and was one of the matters giving rise to the subsequent disputes, when concerns were raised as to whether the money so collected had properly been accounted for. Regrettably it seems to be the case that no management accounts or yearly accounts for the mosque were ever produced. It is clear that some of these connected with the Company became, and remain, very critical of Mr Aslam on this. It is no part of what I have to decide to make any findings with regard to the application of moneys collected – indeed I did not have the material before me to do so. What I think, in fairness to Mr Aslam, can be recorded is that the committee itself did not at this time seem to have asked for any accounts. Further, as Mr Aslam observed, there was both a Secretary and Treasurer; and he said that, for example, Mr Rashid Brora was a signatory to the bank account and had full access to it.

The Building Agreement

[54]The Building Agreement was eventually concluded on the 29th April 1997. Paris Smith & Randall again acted as solicitors on behalf of the Trust.

[55]The overall structure of the Building Agreement, which is a detailed document, was the grant of a licence by the City Council to the Licensees to enter onto the site for the purpose of constructing the new mosque with provision for a Transfer on fulfilment by the Licensees of the term of the Building Agreement. The date of entry for the works was backdated to 19th April 1996 to allow for the fact that some works had already started. The Building Period was 4 years from the date of entry. The price was £56,000 payable in 4 yearly instalments, expiring on 19th April 2000. There was provision for re-entry in case the building works were not duly completed. Incorporated into the Building Agreement was a Community Use Agreement, providing for the availability of rooms within the mosque for wider community use.

[56]The Licensees are defined as follow:

“MOHAMMAD ABDULLAH of 32 Blenheim Avenue Highfield Southampton AZIZ DIN BRORA of Brora House Chilworth Road Southampton and MOHAMMAD ASLAM of 34 Blenheim Avenue Highfield Southampton being the present Trustees of the Southampton Medina Mosque Trust and Community Trust”

By clause 18.1 it is provided as follows:

“The Licensees shall not (except by way of mortgage) assign underlet transfer or part with their interest or possession under or the benefit of this Agreement or any part of such interest possession or benefit save by way of assignment to other Trustees for the time being of the Southampton Medina Mosque Trust and Community Trust”

I add that there has never been any such assignment. By clause 33 it was provided that if the building works were all duly completed, the sale price instalments all duly paid and all other terms of the Building Agreement complied with (other than those waived) then the City Council would convey the site by Instrument of Transfer in the form provided in clause 8.6 (which was an agreed form) in favour of the Licensees. Clause 34 is in these terms:

“Limitation of Liability The persons named as the Licensees herein are named as such as trusteees [sic] of the Southampton Medina Mosque Trust & Community Trust and in the event of any claim being made against the Licensee [sic] hereunder their liability shall be limited to the total value of the assets at that time of the said Southampton Medina Mosque Trust and Community Trust”

[57]Although there were, and still are, various matters under the Building Agreement which have not been complied with the City Council has waived all its rights in that regard. As I have said, it has indeed long been anxious to convey the site: hence, ultimately these proceedings as commenced by the City Council.

[58]It will be noted that Mr Cheychi is not named as a Licensee. This gave rise to much debate in evidence and I suspect helped promote the doubt raised as to whether he had indeed ever been approved as a trustee. But in my view, having considered the evidence, there is no sinister side to this.

[59]It might have been helpful if I had been shown the full solicitors’ file and correspondence on this. So far as the City Council was concerned it had in previous years written to the Trust on some occasions styling it “the Southampton Mosque Trust” – but in terms of the identity of the Licensees/trustees they clearly would have relied, and justifiably so, on those identified via Mr Aslam and Paris Smith & Randall.

[60]Mr Aslam during the trial produced a selection of letters passing between him and Paris Smith & Randall in 1996, relating to the travelling drafts of the Building Agreement (although I was referred to no such drafts). In particular, however, he referred me to a letter sent by him to Paris Smith & Randall on 18th April 1997 in response to a letter from that firm of that date (which was not before me). In that letter, Mr Aslam had stressed that no further delays could be afforded. He stated that Mr Aziz Din Brora was away on Hajj in Saudi Arabia until the 25th April 1997 and said “Furthermore if it is possible to add the name of the fourth trustee, please let me know”. That “fourth trustee” could only be Mr Cheychi.

[61]Quite why Mr Cheychi’s name was not on the initial versions of the Agreement was not satisfactorily explained – after all he had been, on Mr Aslam’s own case, appointed a trustee in December 1995 and Mr Aslam had corresponded with the solicitors on the draft during 1996. But in my view this does not displace the conclusion that Mr Cheychi had been appointed a trustee and indeed Mr Aslam’s letter of 18th April 1997 is predicated on the basis that there was indeed a fourth trustee. As Paris Smith & Randall’s response of 22nd April 1997 indicates, it would – given the deadline – have taken up too much time to have fresh copies of the Agreements made; and the advice was that the fourth trustee could be added later under clause 18.1 or as a further party at the time of the Instrument of Transfer. That advice was followed and the Building Agreement was signed accordingly in its then form. Thereafter it was not thought necessary to add Mr Cheychi to the Building Agreement. The impression I in fact got from Mr Cheychi was that he was not altogether sorry not to have been named as a party to the Building Agreement, given the onerous contractual obligations on the Licensees.

[62]Clearly the making of the Building Agreement was known to, and approved by, the committee – even if I suspect its individual terms were not precisely gone through. As before, the committee were content to rely on Mr Aslam and the solicitors. Obviously the making of the Building Agreement was also known to the community at large, and it was an occasion for celebration.

[63]As to Mr Aziz Din Brora, he again attended himself at the solicitors’ offices to sign the contract. He told me in evidence that he then queried the inclusion of Mr Aslam, and the absence of Mr Tasib Khan, on the Building Agreement, but was told by Mr Aslam it had to be signed then. He also told me that he thought Mr Aslam was signing in his capacity as chairman. I do not accept this. The solicitors explained the document to the individuals present (with Mr Aslam assisting in translating). Mr Aziz Din Brora, I find, expected and appreciated that Mr Aslam would be signing as a trustee of the Mosque Trust: indeed Mr Brora expressly told me he and Mr Abdullah signed as trustees on behalf of the Trust. That, as I also find, would have been the assumption of the whole committee which would have expected Mr Aslam to be a signatory. Further, I reject Mr Aziz Din Brora’s evidence to the effect that it did not matter who signed the Building Agreement. It did, partly because of prestige but mainly because it was perceived that the individuals signing had taken on onerous obligations with regard to the City Council. I thus think Mr Brora is wrong here: and any query that he did raise was, as Mr Aslam said and I accept, as to why Mr Cheychi was not also signing, as to which Mr Aslam then gave an explanation on the lines outlined above.

[64]My conclusion is that in point of fact, as well as in point of law on the express words of the Building Agreement, the Licensees signed as trustees of the Southampton Medina Mosque Trust.

[65]As to the name “Southampton Medina Mosque Trust and Community Trust” all before me were agreed that that does not connote any body other than the Southampton Medina Mosque Trust. The reference to the “Community Trust” was, essentially, to accord with the wishes of the City Council: which understandably wanted to emphasise that the mosque site was not to be developed solely as a mosque for the Muslim community in Southampton but also, in part, was to be available for wider community use.

Events following the Building Agreement

[66]There is no doubt that, after the initial elation at the Building Agreement being concluded, difficulties continued, indeed increased. There was in particular enormous financial pressure in that not only had the instalments under the Building Agreement to be paid but the cost – many hundreds of thousands of pounds – of construction had to be met. As before, contributions were constantly being sought: but delays occurred and anxieties mounted. Questions started to be asked. The financial pressure was such that the instalment payments due to the City Council were not paid on the due dates (preference being given to paying building costs). I gathered that Mr Aslam, Mr Yasin and Mr Aziz Din Brora, among others, latterly made particularly large contributions to keep the project alive – whether by way of donation or loan possibly may be in issue and is not for me to decide, although I place on record that both Mr Rashid Brora and Mr Aziz Din Brora expressly acknowledge in their witness statements that Mr Aslam made contributions by way of loan. Mr Aslam and Mr Yasin in fact, as I gather, sold or charged their houses for this purpose. In addition, Mr Aslam says his brother made a very large loan to keep the project afloat, and his family members involved themselves in the building works without receiving payment.

[67]Very shortly after the Building Agreement was concluded members (including Mr Shah Moied and Mr Poswall) of the Razvia Trust asserted a claim that the Razvia Trust was entitled to own and manage the Medina Mosque. Its committee purported to dismiss Mr Aslam and the entire committee of the Southampton Medina Mosque Trust. That was widely publicised at the time. Certainly at around this time Mr Aslam and others finally severed whatever connection they still had with the Razvia Trust. And it is this, perhaps, which caused some witnesses to suggest that the Southampton Medina Mosque Trust only ceased to be part of the Razvia Trust in 1997, even though, as I have concluded, the former had come into existence as a separate organisation in 1994. But be that as it may, this manoeuvering is indicative of the concerns, and fissures, within the wider Muslim community in Southampton: not assisted, perhaps, or at least illustrated, by the Medina Mosque declining at a later stage thereafter – Mr Aslam being one of the driving forces in this regard - to join in the new Muslim Council of Southampton, which other mosques in the area had joined. There were occasions of altercations and disturbances within the mosque at prayers and other times. Further, as I have said, increasing numbers of questions were being asked as to the application of monies so far collected: indeed written statements in 1997 and 1998 were collected on behalf of the Razvia Trust from a number of individuals with regard to cash they said they had personally given to Mr Aslam (without being provided with a receipt) for the new mosque. Allegations were being made that the building project, and the financing, was not being conducted in a way evidencing accountability to the community or to those who had made contributions.

[68]Another problem, as I find, exacerbated by the wider concerns and tensions, was the increasing dissatisfaction on the part of some members of the committee – noteably the Broras and Mr Bashir Ahmed – with the way in which the committee was being run. Before 1997 the committee – although certainly concerning itself with matters – had been broadly content to leave many things to Mr Aslam. He was the man with drive and vision, he was the man best equipped to deal with the City Council and solicitors and financial matters, he was a man able and willing to devote the enormous amount of time and effort needed to drive the mosque project forward. But Mr Aslam had an increasing tendency to be autocratic and to push decisions forward as he personally thought best: accompanied sometimes by a lack of openness (as illustrated, I think, by the failure to cause accounts to be produced and by his making of minutes of meetings in his own way and without circulating them or having them approved at subsequent meetings).

[69]On the 26th September 1999 there was a meeting designed to discuss the difficult financial position and the need to get greater contributions of time and money. The minute of that meeting – prepared by Mr Aslam – is headed “Medina Mosque Trust Special Extra-Ordinary General Meeting to Appoint New Trustees for Medina Mosque”. 31 members and some students were recorded as attending. The minute records, among other things, the present trustees (named as Mr Abdullah, Mr Aziz Din Brora, Mr Aslam and Mr Cheychi) being anxious to recruit further; and that Mr Yasin was “welcomed as a trustee and committee member”.

[70]Here too there was before me a dispute. The Broras and Mr Ahmed, who are recorded as being present, say that Mr Yasin was never so elected. As with Mr Cheychi, they in effect say this minute is wholly false. I reject that, and prefer the evidence of Mr Aslam, Mr Yasin and Mr Cheychi, who were also all present, which also accorded with Mr Farooq’s recollection that Mr Yasin became a trustee. Mr Yasin was I consider then still a committee member, albeit he had absented himself for a while. He agreed on this occasion also to be a trustee, and was appointed one then. It is notable that the minute records Mr Aziz Din Brora saying that he would try to recruit two other named persons as trustees – I do not think that could be an invented detail and it reflects what I consider to be the fact: that others were indeed, to assist with the raising of finance, being sought as extra trustees but no one, apart from Mr Yasin, was prepared to commit. It may all the same be noted that such an appointment again does not accord with the May 1994 constitution, which (on Mr Aslam’s case) was the governing constitution.

[71]On 10th May 2000 there was a meeting, attended by a number of people including Mr Aslam and Mr Rashid Brora, with the City Council. The City Council understandably was becoming increasingly concerned at the delay, disputes and general uncertainty. Councillor Arnold repeatedly stressed the need to establish a “legal body with a democratic structure to own and manage the mosque”. At this time, moreover, the Razvia Trust was still strongly claiming rights with regard to the Medina Mosque and was not acknowledging the Southampton Medina Mosque Trust as a separate body. In fact, most unfairly, the City Council was even itself being criticised in some quarters for the confusion, even though it was its assistance and general forbearance which had made the implementation of the Building Agreement possible and even though it had negotiated the Building Agreement with Paris Smith & Randall.

[72]The year 2000, all before me agreed, was a particularly difficult year for those involved with the mosque. It nevertheless, notwithstanding the difficulties, appears that no formal meeting of members took place. Moreover Mr Aslam had fallen out with Mr Bashir Ahmed. Mr Aslam took the view that Mr Ahmed was not pulling his weight in these troubled times (a view not universally held). According to the Broras and Mr Ahmed, Mr Aslam simply announced in the mosque that Mr Hanif Malik was to take over as vice-chairman from Mr Ahmed. Mr Aslam sought to say to me that this had been done “in consultation” with trustees and various committee members but was singularly vague as to whether a committee meeting had been held to approve this and in effect conceded none was. The other witnesses called by him were likewise vague. It is noticeable that at a meeting of the committee on 23rd September 2000 which is minuted – the minute is drafted now by Mr Ahmed – and attended by Mr Aslam amongst others, it is recorded that Mr Rashid Brora attacked Mr Aslam’s announced decision to appoint Mr Hanif Malik as the, or a, vice-chairman. It was now Mr Aslam’s turn before me to attack this minute as false. In my view it is not. I accept the evidence of the Broras and Mr Ahmed on this and I think the minute is to be taken as essentially accurate. I conclude that Mr Ahmed was never lawfully removed from his position.

[73]From around this time I find that Mr Aslam and some of those particularly associated with him (in particular, Mr Abdullah and Mr Cheychi) started not to attend committee meetings. Others also seem to have started keeping away, perhaps in despair. A committee meeting was held on 14th October 2000, which is minuted. Mr Aslam suggested that it was not properly convened, in that notice was not given to him, but I reject that: it is, for example, noticeable that Mr Yasin, a supporter of Mr Aslam, was there. That meeting involved, as the minute records and I accept, the committee discussing Mr Aslam’s absences and failures to consult the committee and approved an approach to be made by Mr Hanif Malik, who was also present, to Mr Aslam to encourage him to attend committee meetings and share his views. This was confirmed at a further committee meeting of 21st October 2000.

[74]A further meeting, minuted, was held on the 30th December 2000. Mr Aslam, Mr Abdullah and Mr Cheychi – as before – did not attend. Mr Yasin also did not attend, although he did not dispute that he had notice of it. I find that Mr Aslam, Mr Cheychi and Mr Abdullah had themselves had notice of it, and elected not to attend. Those who did attend were eight in number, including the Broras and Mr Ahmed, and also including Mr Farooq and Mr Shaukat Ali who it seems had by now been elected a committee member. Previous minutes were approved. It was decided that three individuals would approach Mr Aslam with a view to persuading him “to produce accounts and to cooperate with the committee”. The “position of the SMMT Trustees” was recorded as being considered: it was resolved to await the next meeting.

[75]That meeting, attended by six members of the committee, took place on 9th January 2001. It is minuted, in a way which, considering the evidence, I regard as accurate. It records that visits were made to Mr Aslam (which, in spite of his denials in evidence, is plausible and I find occurred); that he had not cooperated; and that a letter would be sent. The letter, signed by a number of the committee members present, was sent out that day. It noted Mr Aslam’s failure to attend meetings and required him to produce proper accounts within seven days and to undertake to cooperate and comply with committee decisions. The desire to seek accounts, I note, reflects the wider concerns raised by some members of the local community.

[76]Mr Aslam did not produce such accounts within seven days – or, indeed, at all. He did not give the undertaking and never has. As Mr Yasin and Mr Cheychi rather revealingly put it with regard to the letter of 9th January 2001: “we decided to ignore it”.

[77]A further committee meeting was held on 20th January 2001. It is minuted. I am satisfied that it was properly convened. Only four committee members attended. It was recorded that three members had by then resigned “in despair”. It was recorded, and I accept, that it was purportedly agreed that Mr Aslam “no longer hold any post within SMMT as he had failed to respond to the committee”. A letter to that effect, saying he “was no longer a member”, was sent out to Mr Aslam on 29th January 2001. While one can envisage an implied contractual power in the committee to remove a committee member for cause, it is difficult to see on what legal basis the committee – as opposed to a general meeting of members – could remove Mr Aslam as a trustee, if that is what this letter was purporting to do. Mr Aslam, at all events, made no direct response to that letter.

[78]For his part, Mr Aslam clearly was aware of what was brewing. He had, I conclude, made the conscious choice to stay away from meetings. He considered that he was being made the subject of a campaign of vilification. He made an announcement in the mosque to the effect that he was in charge. He sent a strongly worded letter to Mr Ahmed dated 26th January 2001 stating that “with great sadness I have to formally inform you that you have been dismissed from the mosque committee along with your fellow conspirators, Brora – father and son”. As to quite by whom they had been so dismissed, and under what authority, Mr Aslam could give no convincing explanation in evidence. The clear impression I had was that he purportedly did it himself, probably with the tacit support of his father (Mr Abdullah), brother-in-law (Mr Cheychi) and Mr Yasin who could all be relied upon to side with him.

[79]On the 12th February 2001 Mr Aslam unilaterally wrote a further letter to Mr Aziz Din Brora, informing him that “the committee unanimously resolved to remove you from your position as trustee of Medina Mosque last night 11/02/2001”. I am quite satisfied there was no such committee meeting (and no minute of one has ever been produced); at most there had been a discussion between Mr Aslam, Mr Abdullah, Mr Cheychi and Mr Yasin (who Mr Aslam told me he considers to be part of his family, even though not related). In any event, Mr Aslam could point to no provision in the May 1994 constitution authorising the committee, even had a committee meeting been convened, to take such a step: indeed it is contrary to clause 8.7.1. Nor would the general law, in the absence of a constitution so allowing or in the absence of the approval of a duly convened general meeting of members, so permit.

[80]I should also add that at the end of January 2001, and after he realised he was to be dismissed from the committee, Mr Aslam provided a yet further version of the purported constitution to the City Council. This version had been artfully redrafted (by Mr Aslam, acting unilaterally) in such a way as designed to give far greater power to the trustees as compared to the committee and designed to convey to the City Council that Mr Aslam (and his fellow Trustees) had effective control. Mr Aslam was entirely unable, in cross-examination, to justify such a step: the truth was, as I conclude, he was trying to bolster his own position with regard to the City Council when he could see power slipping away. But in my view such an unworthy step is also revealing, in that it shows Mr Aslam himself did not really regard the May 1994 constitution as operative or as binding the members. It is a document which, I have to say, Mr Aslam has throughout relied on when it suits him and ignored when it does not. By 2001, as I find, Mr Aslam was in fact increasingly purporting to rely on his status as trustee to try to overcome his loss of control of the committee: which, legally, was not an option open to him.

[81]It is noticeable that, in response to subsequent queries by the Charity Commissioners and (as Mr Aslam told me) on legal advice, a further purported “Extra-Ordinary General Meeting” of the Mosque Trust was held on 23rd July 2005. It was, as minuted, attended by Mr Aslam and by five other people (all members of Mr Aslam’s family, with Mr Yasin). That meeting purported, first to ratify Mr Aslam’s appointment as trustee “in or around May 1994”; second, to ratify the removal of Mr Aziz Din Brora as a trustee “decided in a Trustees meeting held on 29th September 2001 in accordance with clauses 8.6.7 and 8.7.2 of the constitution”. As to that, there was no minute of such a purported trustees’ meeting produced before me; such meeting (if held at all) in any case post-dated the purported dismissal letter of 12th February 2001, which had indicated purported dismissal by the committee, not trustees. In any event, there was no evidence that notice of such “Extra-Ordinary General Meeting” of July 2005 was given to the general membership if the Trust still existed. It is plain that if there was such a meeting at all, Mr Aslam simply convened a meeting of certain selected family members.

[82]All this shows that by 2001 breakdown between the factions was now almost complete. The City Council was aware of this. It clearly, and justifiably, had concerns about this and its effect on community relations, as well as its effect on completion of the Building Agreement. The funding difficulties had long become apparent to the City Council: moreover such difficulties had led to delays in the building works, although they did continue: much of the work being undertaken by members of the community, including in particular members of Mr Aslam’s family. A further complication was that the Razvia Trust was, as I have mentioned, continuing to assert a claim to the mosque site. (It is somewhat ironic, in view of Mr Aslam’s present complaints, that at that time the Razvia Trust was in effect itself asserting that Mr Aslam and others had “hijacked” the ownership and management of the mosque away from the Razvia Trust and its members, who were alleged to be the true beneficial owners of the Medina Mosque.) At all events, on 29th January 2001 Mr Ahmed, on behalf of the committee, wrote to the City Council, enclosing a copy of the purported dismissal letter of 29th January 2001 to Mr Aslam, indicating an intention to hold an election for a new committee and inviting the Council’s comments and involvement. I incline to think that this letter was not welcome to the City Council. It had been used to dealing with Mr Aslam, whom I suspect it had found articulate, energetic and businesslike, and it would not have necessarily welcomed now dealing with a new grouping: quite apart from implications for cohesion and for the enforcement of the Building Agreement itself. But that was the position it now faced.

The Meetings of 2001

[83]On 15th March 2001 a meeting with the City Council was held. Minutes, which I accept as accurate, were taken by the City Council, representatives of whom attended. Also present were representatives of the then committee of the Mosque Trust; representatives of the Razvia Trust; and Dr El-Khayat of the Muslim Council of Southampton. There was general discussion about the way forward. Questions were, understandably, asked about the precise nature of the membership of the Medina Mosque Trust. The City Council’s view had been that a new body, in the form of a company limited by guarantee, should be set up, approved by both Razvia and Medina congregations. It was agreed that wide consensus should be sought for election of a new committee, with the indication that such meeting was to be held on Sunday 18th March 2001 and “No one will be excluded”. All places on the committee were stated to be up for re-election. Mr Brora is recorded as saying that notices had been displayed in shop windows publicising the forthcoming meeting. Mr Aslam did not attend the meeting on 15th March 2001. He had not been invited. But the minute records the Council emphasising that Mr Aslam should be given the opportunity to participate. A representative of the Razvia Trust is also recorded as suggesting the election should wait a further week to ensure that all members were made aware of it.

[84]In the event such a meeting did take place on 18th March 2001. Over 100 people attended. I accept the evidence of the Broras and others that it was open to all and none were excluded. Further, it was attended by representatives of the City Council and of the Razvia Trust and also by Mr Khurshid Drabu, a lawyer closely associated with the Muslim Council of Britain, whose assistance had by now been sought. That he was present shows that the meeting had been for some time planned for that day: and I accept the evidence given on behalf of the Company that it had been widely advertised in advance, including also by announcements in the mosque, notwithstanding the reported reservations expressed by the representative of the Razvia Trust at the meeting on 15th March. Above all word of mouth would have operated, in accordance with local practice within the community. I conclude, on the evidence, that the meeting was sufficiently drawn to the attention of the Muslim community in Southampton having an interest in the Medina Mosque: and that embraced the membership of the Southampton Medina Mosque Trust. In truth, such a meeting had become essential. Everyone had had enough and there was a complete impasse which required a resolution.

[85]Mr Aslam, however, did not attend. He says that he had a long pre-arranged visit to Pakistan for important family wedding celebrations, for which he was due to depart on the 17th March. He frankly conceded that, because of those celebrations, he would not have attended the meeting of 18th March anyway. But he says nevertheless that he had no notice of the meeting.

[86]I do not accept that on the evidence. The meeting was, as I find, widely advertised: it is highly improbable for that reason alone, and given word of mouth, he would not have known. Further, the committee had agreed that no one would be excluded and had regard to the City Council’s express statement that Mr Aslam should be given the opportunity to participate. I simply do not think the committee would have gone behind the City Council’s back on that, indeed it was in the interests of all that all be allowed to participate. Yet further, Mr Rashid Brora in his evidence said that (in effect as a further precaution) a notice was sent to Mr Aslam by recorded delivery. No document to that effect was in the trial bundles. But during the course of the trial Mr Rashid Brora, who had in the meantime rechecked his papers, produced an original recorded delivery slip, which I gave leave to be produced (giving Mr Aslam the opportunity, which he took, to have Mr Brora recalled to give further evidence). This slip, which I am satisfied is genuine, is stamped 15th March 2001, with delivery to Mr Aslam’s address guaranteed the next working day before noon. Mr Aslam conceded he did not leave for Pakistan until the afternoon of the 17th March. I do not accept his evidence that he never received notice of this meeting, either by this recorded delivery notice or by general awareness from advertisements and word of mouth. Moreover, after his return Mr Aslam does not appear to have written any letter in terms protesting that he had no notice of the meeting.

[87]Mr Aslam did not ask anyone else to attend on his behalf. Mr Abdullah, Mr Cheychi and Mr Yasin did not attend. Mr Yasin, albeit with some prevarication, accepted in cross-examination that he knew about the meeting, and accepted that he knew it was designed as a way out of the impasse. He chose not to go, as he did not wish to be on any new committee and deliberately did not put himself up for re-election. Mr Farooq also gave evidence that he was aware of the meeting and that its purpose was to have elections for a new committee. His personal view was that there was no need for this and he did not attend. Mr Cheychi rather equivocated as to his state of knowledge. At one stage he said that he was not sure that he knew: then he sought to say that he was not aware of the meeting. I do not accept that – he was closely involved in mosque matters and there was no reason for Mr Yasin and Mr Farooq (for example) to know of it but not Mr Cheychi. In fact Mr Cheychi rather revealingly said that he considered that there were two committees by this time: that of Mr Aslam and that of the others (“it was not part of us”). In my view, that reveals the reality: Mr Aslam and his supporters had decided not to attend committee meetings, were regarding themselves as the committee and were now disinclined to acknowledge general meetings convened to elect a new committee. Hence it was decided in effect to ignore the meeting of 18th March 2001.

[88]That meeting, which, as I have said, I am satisfied was a duly convened general meeting of the members, was fully minuted. A list of attendees was appended also. Mr Drabu addressed the meeting at length. It was said that the situation was developing into a “farce” and a proper constitution was needed, Mr Drabu expressly stating that there was no constitution (and, as I find, he was correct in that). The proposal was that an interim committee be elected while this constitution was explored, for a proposed two month period. In the event the meeting voted for such a committee with a four month term, charged with drafting a constitution and to “call a general meeting for all Muslims and propose the constitution for adoption and then conduct full and proper elections”. Mr Drabu then conducted elections, with an interim committee of 15 in number (including office holders) being agreed and individually elected accordingly. The City Council is recorded as saying, by a Councillor present, how very pleased it was to see this meeting take place and how well it was conducted.

[89]Mr Aslam nevertheless asserted that (quite apart from his complaint that – as he said – he had no notice) the meeting was nugatory, for reasons he described as both constitutional and organisational. His “constitutional” argument depended on there being a valid constitution comprising the May 1994 document, when, as I have found, there was not. In any case, Mr Aslam’s argument by reference to that document’s terms was unfounded. For example, he asserted that membership of a different mosque (for example, Razvia) precluded membership of the Medina Mosque. There is nothing in that version of the constitution, on which he himself relied, to justify such an argument, indeed it is contrary to what Mr Aslam otherwise asserted as to the intended “inclusive” nature of the membership and his acceptance that individuals who may regularly worship at one mosque were free to worship at Medina Mosque. As to the “organisational” argument, I do not think this meeting is to be styled as merely a general community meeting and not a meeting of the members of the Medina Trust (although some non-members – for example City Council officials and the observers – also attended). It was indeed a meeting of the members, and designed to be so. If a number present were also closely connected with the Razvia Trust that is unsurprising – after all, until at least 1997 much of the money had been collected ostensibly under the auspices of the Razvia Trust from people regularly worshipping at the Razvia Mosque pending construction of the new Medina Mosque.

[90]It is most unimpressive, to my mind, that Mr Aslam should seek to attack, on technical grounds, the validity of the meeting of 18th March 2001 when such a meeting achieved far greater publicity and attendance than the “Special Extra-Ordinary General Meetings” of 10th December 1995 and 26th September 1999 he had caused to be convened. Moreover such a meeting offered the opportunity for a general discussion as to a way out of the undoubted impasse that had occurred – Mr Aslam’s approach on the other hand (in effect ignoring all opposition, refusing to attend meetings and asserting control for himself) offered nothing by way of consensual resolution. Yet further, I was not impressed by Mr Aslam’s reliance on the 1994 constitution when, as he knew, he had retained it for himself and had not circulated it; when he knew that even those members of the committee in 1994 still active in 2001 would have had limited knowledge of its terms and (most probably) little appreciation of its being relevant; and when, as he must have known, the general membership would have had no knowledge of its existence at all. It is noteworthy, and revealing, that Mr Aslam did not cause any reference to be made on his behalf to that constitution at the meeting of 18th March 2001 or the subsequent meeting of 23rd September 2001.

[91]At all events, the interim committee so elected then proceeded with its task. A draft constitution was prepared. Meetings were held with the City Council and Muslim Council of Southampton, with members of the Razvia Trust also present. As the year went on, the mosque started to be used for prayer, even though still not completed and in a way which, as Mr Aslam emphasised, gave rise to complaints from the authorities that Health and Safety and other requirements were not being observed. Regrettably there continued to be trouble. Mr Aslam had, I find on the evidence, been heard earlier in the year to say in the mosque words to the effect that it was his mosque and he could decide who could attend. Mr Yasin, for his part, said that he was made to feel unwelcome at the mosque by the Broras. Mr Aslam had been accused of locking the gates on at least one occasion. He said that the Broras had obstructed access with cars. Most disgracefully of all, there was a scene of violent disorder at the mosque on Friday 24th August 2001 as a result of which the police were called and people (including Mr Aslam and members of his family) were taken to hospital. I was told that Mr Aslam, and others, were placed on police bail. Mr Aslam considers this disorder was orchestrated by the Broras. Mr Aslam takes the view that matters were so conducted throughout 2001 as a ploy to cast him in a bad light in the eyes of the community and with a view to ensuring that he not be elected at any further meeting. I make no findings as to the responsibility for these various incidents, both because it is not necessary to what I have to decide in these proceedings and also because I have insufficient evidence on which to do so. The point is that these incidents occurred and naturally were widely talked about.

[92]On the 23rd September 2001 there was a further general meeting (as contemplated by the meeting of 18th March 2001). The minute calls it the “Annual General Meeting” of the Southampton Medina Mosque Trust. It was held at the mosque - 110 members attended. It was widely advertised and announced in advance at the mosque. Mr Aslam accepts that he himself was aware of it. I am satisfied on the evidence that it was duly convened and that all entitled to attend had proper notice of it.

[93]A full, and I accept in essentials accurate, minute was prepared. It, amongst other things, refers to the previous meeting. It records that “it had been decided that the Trust would be operated as a company limited by guarantee” and stated that a draft constitution had now been prepared, with the assistance of Mr Drabu. It refers to the constitution being in the form of a company limited by guarantee, as previously discussed, and copies of which had previously been placed in the mosque for inspection. A representative of the Muslim Council of Britain was present, and spoke in support of what the interim committee had done. Mr Drabu also spoke at length and explained the Memorandum and Articles “which will serve as the constitution of the Trust as a charity and a company”. Various proposals were put and, with some modifications, agreed by the meeting. Amongst other things the Memorandum and Articles of Association of the new company, to be called Southampton Medina Mosque Trust Limited, were agreed and adopted. A management committee was elected by ballot, Mr Drabu and Mr Nawaz supervising the election. It is plain, and I find, that the intention was, and the meeting (by at least three quarters of those attending, if not indeed unanimously) agreed, that the new company should take over from and stand in the shoes of the Southampton Medina Mosque Trust. As Mr Aziz Din Brora and Mr Shaukat Ali put it in their evidence, the Southampton Medina Mosque Trust was converted into Southampton Medina Mosque Trust Limited. For that purpose (and as Mr Smith on behalf of the Company expressly accepted before me) the resolution necessarily involved that the Company should take on all the Trust’s assets and liabilities.

[94]Mr Aslam before me submitted that the Interim Committee had only been appointed for a period of 4 months by the meeting of 18th March 2001. That is true. But the defect clearly was waived by the meeting of 23rd September 2001 and the interim committee’s conduct in the intervening period clearly was ratified.

[95]Mr Aslam did not attend this meeting of 23rd September 2001 either. He was asked why not. He told me that it was impossible for him to attend such a meeting, at the mosque, after the incident of 24th August. That, I am prepared to accept, may have been part of his reasoning, although it is difficult to think that further violence would have arisen at this meeting and I doubt if that possibility on its own would have deterred Mr Aslam. Indeed there is a minuted meeting of 29th August 2001, which he attended at the City Council’s offices with the Broras, Razvia representatives and others present. Mr Aslam is minuted as saying at that meeting that he did not want to be a director or anything else with regard to the mosque and that he and his family would not participate in the proposal for a new charitable company. In my view that reveals the reality. One part of his thinking in not attending the meeting was that he was not prepared, by his attendance, to acknowledge the validity of such a meeting. But in addition I think that his anticipation was that he in any event would not be elected on to a new committee. For similar reasons, I conclude, neither Mr Cheychi nor Mr Yasin – Mr Yasin confirmed that he knew of the meeting – attended and no one was asked to speak out in favour of, or nominate, Mr Aslam. Neither of these two “wanted anything to do with it”, as Mr Yasin put it. Mr Cheychi could not recall if he was aware of the meeting (I am sure he would have been) but he too said he would not have gone anyway as he wanted nothing to do with it. Neither Mr Yasin nor Mr Cheychi, I note, referred to a fear of violence as a reason for not attending.

[96]Since then the Company (formally incorporated soon thereafter on 8th March 2002) has managed the mosque. It became a registered charity. It regularly holds general meetings. There have been issues – for example, no accounts or incorrect accounts were lodged for a while but the Charity Commissioners accepted the explanation. Mr Aslam has concerns that assets and liabilities are not correctly recorded in the accounts: he perhaps having a particular concern about the substantial debt he considers to be owing to him, as well as to others including his brother; but that is not a matter for me in these proceedings. The Community Use Agreement has been implemented and the Medina Mosque is active in the community. The Company has affiliated itself with the Muslim Council of Britain and the Muslim Council of Southampton. Mr Farooq, as I have said a disinterested witness, called by Mr Aslam and who in 2001, and now, was generally supportive of Mr Aslam, said that he personally was on good terms with the present management and that he had continued to pray at the Medina Mosque until, for personal reasons, recently. His evidence was to the effect that things had been much better since 2001. I attach weight to that evidence, which accorded with evidence of other witnesses including the reliable Mr Shaukat Ali and Mr Dildar Hussain.

[97]Mr Aslam told me that there have since 2001 continued to be meetings of what he calls “the Southampton Medina Mosque Trust”. Quite what meetings they were was not made clear – whether committee or general meetings. The only minute of any such meeting I have seen is the one dated 3rd July 2005, attended by just five individuals (Mr Aslam and family members closely associated with him). Mr Farooq revealingly said that he did not recall receiving notice of any such meeting since 2001. I find that the body currently calling itself the Southampton Medina Mosque Trust now in effect comprises Mr Aslam, members of his family and close friends such as Mr Yasin. Mr Aslam acknowledged there was no list of members. As for Mr Aslam he (at least until quite recently) has stayed away from the mosque, as have most of his family.

[98]As to the ongoing legal disputes, there has been since 2001 voluminous correspondence. Much of it has been expressed in strong – and in the case of Mr Aslam I have to say sometimes intemperate – terms. No compromise, as I have already said, proved possible.

Submissions

[99]The submissions of Mr Smith and Mr Aslam can be summarised in the following way.

[100]Mr Smith submitted that neither the constitution of February 1994 nor the constitution of May 1994 had any binding legal effect on the members. The first was signed by only a few committee members and in any event was clearly entirely superceded by the second, whatever the effect of the latter. The second was only signed by Mr Aslam and Mr Brora and had been put before only some of the committee members and, even if taken to be approved by the committee, again it was never approved by the members. However he accepted – in my view rightly – that there was an unincorporated association, distinct from the Razvia Trust, with its day to day affairs managed by the committee whose existence and management functions are to be taken as impliedly ratified by the membership of the Medina Mosque. As to the trustees, he disputed that Mr Aslam was ever appointed a trustee after May 1994 or that Mr Tasib Khan ever resigned and he disputed that Mr Cheychi or Mr Yasin were validly appointed as trustees.

[101]The core of his submissions, however, was to the effect that, on any view, the benefit of the Building Agreement (and of the Transfer of the strip of land) was held on trust for the benefit of the Southampton Medina Mosque Trust. A validly convened general meeting of members held – in the light of the breakdown amongst the committee – on 18th March 2001 had resolved that progress be made towards a newly constituted organisation to take over the ownership and management of the mosque; and that had been confirmed and decided by the further validly convened general meeting of members held on 23rd September 2001, when the resolutions were to the effect that the limited company – which was to be the First Defendant – should take on the assets, liabilities and management of the mosque in place of and as successor to the trust. Thus, he submits, the benefit of the Building Agreement (and the right to take the Instrument of Transfer thereunder) and of the Transfer since has been, and is, held on behalf of the Company; and vesting orders should be made accordingly. As to the purported continued existence since 2001 of the “Southampton Medina Mosque Trust” he bluntly submits that that is a charade, and such meetings as that body purports to have held are only held by Mr Aslam and a few of his family: and it at all events has no rights, as such, with regard to the ownership or management of the Medina Mosque even though the individuals are free to attend the mosque to worship.

[102]Mr Aslam, for his part, put his closing submissions in writing (subsequently supplemented after the hearing, with my leave) which he read out. He submitted – plainly correctly – that the Company had no rights at the time of the Transfer or the Building Agreement as it did not even exist then. He said that it was the Trust which up to 2001 paid all sums due under the Building Agreement and which had financed the building works. The meeting of the 18th March 2001 did not, he said, operate to replace the trustees of the Southampton Medina Mosque Trust, which he maintained was constituted under the terms of the May 1994 constitution, since it was held “by a group of about 100 people” when the trustees, and in particular himself and Mr Abdullah, were out of the country or had no notice. He submitted that the interim committee had no validity and nor did the meeting of 23rd September 2001. He submitted, in written opening submissions which he repeated, that this was “an example of anarchy by one group taking over a place of worship by mob rule in the guise of Freedom and Democracy”. He submitted that the benefit of the Transfer and of the Building Agreement has continued, since 2001, to be held on behalf of the Southampton Medina Mosque Trust: and the trustees of that trust are himself, Mr Abdullah, Mr Cheychi and Mr Yasin (Mr Aziz Din Brora having been, he said, validly removed for “gross misconduct” or, alternatively, being taken to have resigned). Vesting orders should be made accordingly in favour of them as trustees: and by that route, he submitted, justice would be done. No other conclusion, he said, would be just.

[103]Mr Aslam went on to say that a construct of a limited liability company to own and run a mosque was not in accordance with Sharia Law and was an inappropriate legal mechanism for so doing: he cited two very interesting articles of Mr Ahmad Thomson, barrister, of 17th November 2000 and 6th February 1999 in that regard. He also submitted that the structure purportedly approved on 23rd September 2001 had been “railroaded through” with the assistance of the Muslim Council of Britain, a body which – he stated in open court, to the audible gasps of many present, as I observed – he did not recognise. He also said that the categorisation, and rights, of members under the Company’s constitution was unacceptably restrictive. He said that if he and the other trustees were restored to what he said was their rightful entitlement to ownership of the mosque then there would be peace and harmony, and the affairs of the mosque would be appropriately managed under an appropriate structure for the benefit of the entire Muslim community in Southampton and with entire freedom of worship.

Conclusion

[104]Although the evidence and submissions have ranged far and wide, it seems to me that, on the conclusions of fact which I have reached, this case can, and should be, resolved on a relatively short and straightforward basis.

[105]As it seems to me, the starting point must be that the Building Agreement (as was the Transfer) was made with the named individuals as trustees of the Southampton Medina Mosque Trust. That is what it says (leaving to one side the superfluous descriptive words “and Community Trust”) and that is its effect. All the witnesses before me were agreed that the individual Licensees mentioned were not to be regarded as taking beneficially but as trustees of that trust.

[106]Further, no assignment, at all events in writing, pursuant to Clause 18.1 of the Building Agreement has been made; nor, as will be apparent from my findings set out above, was Mr Aziz Din Brora ever validly removed as trustee as asserted by the letter of 12th February 2001 or otherwise by any communication from Mr Aslam. So far as the City Council is concerned, it having waived all outstanding breaches, it can look to the named Licensees to execute the Instrument of Transfer. But that, of course, is for present purposes mere form: the essential task is to identify on whose behalf the Licensees hold the benefit of the right to take the transfer of the mosque site under the Building Agreement. For this purpose it does not matter whether they are express trustees or whether they are constructive or de facto trustees (the label is not important).

[107]On the findings I have made above, the Southampton Medina Mosque Trust had its existence, as an unincorporated association and with trustees, separate from the Razvia Trust, both at the time of the Transfer and at the time of the Building Agreement.

[108]But in my view the resolutions of the general meetings held in 2001 plainly, on their meaning and intent, had the effect of transferring the benefit of the Building Agreement (and of the Transfer) to the new limited company which was proposed to be incorporated and which in due course was incorporated: viz. the First Defendant. The Southampton Medina Mosque Trust was, by such resolutions, thus superceded by the Company, and in consequence then stood dissolved. That was so by virtue of the vote of the members attending the meetings: and the committee, and the then trustees, were bound by such vote. Nothing in the purported May 1994 constitution (on which Mr Aslam has relied) can preclude such a resolution in general meeting, if only, amongst other things, because, as I have found, the May 1994 constitution had never been adopted or approved by the members in any event.

[109]Further, on the findings I have made, both such meetings were validly convened. I find that notice of the meeting of 18th March 2001 was given (in a way accepted by practice over the years as appropriate) to all persons of Muslim faith in Southampton with an interest in the Medina Mosque, thus comprehending the membership of the Southampton Medina Mosque Trust, and all who wished to attend were permitted to do so. On the evidence I reject the assertion that Mr Aslam (or Mr Cheychi or Mr Abdullah or those associated with them) did not have notice of that meeting. Clearly Mr Aslam could not have attended in view of his prior, long-standing commitments in Pakistan. But his associates could have attended and put forward his (and their) viewpoints. But they chose not to. My view is that their stance then was the same as the stance decided upon on receipt of the letter of 9th January 2001 – in effect, deliberately to ignore it.

[110]Perhaps even more significant was the meeting of 23rd September 2001 – for that both in effect ratified the meeting of 18th March 2001, and the appointment and actions of the interim committee in the period up to 23rd September 2001, and approved the formation of the new company to take over from the Trust – which necessarily included taking over its assets, liabilities and management responsibilities. Here, Mr Aslam himself accepted, as did Mr Cheychi (equivocally) and Mr Yasin, that he had notice of such meeting. He chose not to attend. No doubt he had his reasons but he, along with the other trustees, whether express or constructive, is bound by the result: as a trustee (and assuming, for this purpose, he had been a trustee) he was answerable to the members, as beneficiaries under the Trust: not the other way round. He was and is bound by the resolutions.

[111]I am therefore satisfied, on the evidence, that he was permitted to attend such meetings and he or his associates would have been permitted to address the meetings and put their views and vote, without being excluded. I do not agree with Mr Aslam that this was an undemocratic takeover by mob rule. On the contrary these were meetings at which all relevant members of the community were free to attend. Many did.

[112]Mr Aslam asserted that those attending the meetings of 18th March and 23rd September 2001 were all supporters of the Broras or Mr Ahmed or a “renegade” (in his words) grouping of the Razvia Trust. There was no sufficient evidential basis for that assertion, and in any event that does not meet the point that all those entitled were free to attend and vote.

[113]Mr Aslam was critical of the interim committee in the period after March 2001 for, amongst other things, permitting the mosque to be used in contravention of Building Regulations and without the necessary Health and Safety and other consents (thereby attracting objections from the City Council); of the violent scene that occurred in that time; and so on. But such matters cannot invalidate the resolutions of the general meeting of 23rd September 2001. Nor can Mr Aslam’s complaints about the subsequent conduct of the Company (which complaints include, but are not limited to, the accounts prepared). The Company is answerable to its members and to the Charity Commissioners, as the case may be, for the way in which it is operated. But its ultimate right to the benefit of the Transfer and of the Building Agreement is not affected. Rights to property are not, generally speaking, capable of being displaced by assertions of misconduct of this kind.

[114]With hindsight at least – and really not even with that – it is a very great pity that Mr Aslam did not attend the meeting of 23rd September 2001, if not also – through his supporters – that of 18th March 2001. Had he done so, he could have put forward his views arguing against the incorporation of what was to become the First Defendant and against the election of the new committee and officers and against the replacement of the Trust; or at all events putting himself (as others associated with him also could have sought to do) up for election. The will of the members attending the meeting could then have decided. As I have said, I consider that Mr Aslam’s main reasons for not doing so were, first, because he had decided to ignore the new proposals and structures and did not wish to acknowledge them and, second, because by early 2001 and throughout 2001, he had begun to conclude that he had – whether for good reason or not is not necessary for me to decide – lost his support within the community and so would not attract a vote in his favour in any event. He had become – albeit as he would see it most unfairly – marginalised.

[115]While it is wholly understandable that the City Council, and the Charity Commissioners, would have wished to see a consensual solution, in which all elements found representation in the management of the mosque, that cannot displace the resulting position. Thus it is pointless – and in any event not possible – to try and ascertain why the attempts at an agreed solution in the years after 2001 failed. I would however simply point out that democratic process remains available, and those members of the Company supporting the views of Mr Aslam or seeking his appointment, are, subject to and in accordance with the Memorandum and Articles of Association of the Company, free so to propose at general meetings. Mr Aslam, and his supporters, are free to worship at the mosque and are eligible to be members of the Company: indeed on occasion Mr Aslam – and Mr Abdullah, Mr Cheychi and Mr Yasin – have been expressly invited to become members of the Company. Further, at the end of his opening written submissions on behalf of the Company Mr Smith (reflecting what Mr Rashid Brora had said in his second witness statement) indicated that Mr Aslam, and others representing the former trust, would be welcome to seek a position within the governance of the mosque.

[116]My conclusion therefore is that on the true interpretation of the Building Agreement and in the events which have subsequently happened the Licensees hold the benefit of such Building Agreement on trust for the Company. It was, rightly, common ground before me that whatever the outcome for the Building Agreement there must be the same result for the Transfer of 11th March 1996; and the Purchasers thus also hold the benefit of the Transfer, on its true interpretation and in the events which have subsequently happened, on trust for the Company. It is of course to be understood, and I make clear, that the Company on its incorporation has generally not only become entitled to all the assets but also subject to all the liabilities of the former Southampton Medina Mosque Trust. It is a further consequence of that that the Licensees and Purchasers under the Building Agreement and the Transfer are entitled to indemnity from the Company thereunder, if and to the extent any residual personal liability to the City Council or Hampshire County Council remains.

[117]I will make vesting orders in favour of the Company, pursuant to the powers conferred under section 44, 51 and 52 of the Trustee Act 1925 (as amended) and all other enabling powers. It may be (if the City Council so wishes) that directions can also be given with regard to completion or vesting of the Community Use Agreement incorporated into the Building Agreement, although in practice the arrangements currently seem to be working satisfactorily.

[118]I would add this. Were it to be the case that this matter were to be decided as a matter of discretion, and on the footing that I had the necessary power to make an appointment or vesting order as a matter of “expediency” under section 41 or section 44 (vii) of the Trustee Act 1925 or by way of scheme under the charitable jurisdiction of the High Court, then I would have reached the same conclusion in favour of the Company. I say this because, quite plainly, matters have moved on greatly since 2001. There was an amount of evidence before me, which I accept, to the effect that the mosque is now generally being efficiently run, in the eyes of the public (even if not in the eyes of Mr Aslam); there is freedom for all to worship and good community engagement; matters are now essentially peaceful there, although obviously the ongoing litigation has given rise to tensions; and the situation generally has greatly improved since 2001. In my view, it is much the best that the status quo be preserved. Moreover a sufficient “democratic” structure – whatever the present views of Mr Aslam – is in place under the Memorandum and Articles of Association of the Company: which company, as a registered charity, is also answerable both to its members and to the Charity Commissioners.

Disposition

[119]There will be judgment in favour of the First Defendant Company accordingly. I would ask counsel for the Claimant and the Company to prepare a Minute of Order, containing the appropriate declarations and vesting orders, to reflect this judgment and in particular paragraphs 116 and 117. I would hope that such minute can be agreed as a matter of wording between them and Mr Aslam. I will, at the time of handing down this judgment, hear the parties as to any consequential matters, including costs.

[120]While, in the result, my judgment is that the Company has succeeded I would hope there is no sense of triumphalism on its part. As I see it, the community, whatever the present perceptions of some, has reason to be enormously obliged to Mr Aslam, whose energy and efforts were absolutely crucial to obtaining the Building Agreement and to its implementation – the subsequent disastrous breakdown in relations should not cause that to be forgotten. Further while there have been criticisms – to some extent justified – of Mr Aslam’s conduct and style as chairman (for example, the failure to circulate minutes or to provide accounts, his propensity to dictate the agenda and so on) it must be remembered that the committee was prepared to go along with this for many years: just because, no doubt, Mr Aslam was then trusted and his vision and energy then appreciated.

[121]As to the future, the indications are, as I have said, that in the last few years matters at the mosque have been conducted on a more peaceful basis. On the legal issue the parties (having, most regrettably, been unable to achieve a mediated solution) have now obtained a ruling in this court. This is capable of affording closure. But in human terms it hereafter needs the good sense and a spirit of reconciliation of all concerned to achieve that. While views have differed, and continue to differ, as to the way in which the Medina Mosque should be operated and as to the direction it should take, all must surely agree it was built primarily for the benefit of Muslim worshippers in Southampton as a whole. Individual views, however strongly and sincerely held, should, as it seems to me, respect that. ____________________

Cited in 1 later judgment

Purani Swami Dharmanandan Dasji v Daveen Mavji Bhudia & Ors 2026