Solad Sakander Mohammed & Anor v Boston Mohammed & Ors [2018] EWHC 805 (Ch)

Case No PT-2008-000193[2018] EWHC 805 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue The Rolls Building, 7 Rolls Buildings, Fetter LaneDate Friday, 23 rd March 2018
London EC4A 1NL
Before
MR. JUSTICE NORRIS
Between
SOLAD SAKANDER MOHAMMED & ANOTHERClaimantsBOSTON MOHAMMED & OTHERSDefendants
MR. JOSHUA WINFIELD (instructed by Rafina Solicitors) for ClaimantMR. JOHN DITCHBURN (instructed under the CLIPS Scheme) for 4 th, 5 th and 12 th Defendants
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JUDGMENT
[1]This is a dispute about a mosque located at Abbey Mills, Canning Road, London and held at present under Title Number EGL374498. When I refer to it as “a mosque”, it is, as I understand it, both a place of worship and a form of community centre. For simplicity I will simply refer to it as “the Mosque”. The registered proprietors of the Mosque are Zulfiqur Ali, Ibrahim Sheikh (“Mr Sheikh”) and Solad Sakander Mohammed (“Mr Mohammed”) expressed to be “the Trustees of the Anjuman-E-Islahul-Muslimeen of London (UK)” (“the charity”). The date of their registration as proprietors is not apparent but appears from other material to be some time in 1996.[2]I have been shown on a confidential basis (such that the material has not been disclosed to the defendants) a Trust Deed date 5th November 1996 naming Zulfiqar Ali, Mr Mohammed and Mr Sheikh as those declaring the trusts. It recites a conveyance dated 5th November 1996 and that the premises had been purchased “by the Trustees with the intent that a Mosque and other buildings should be erected thereon”. The Declaration of Trust says in clause 1 that:
“The Trustees shall permit the Mosque and any buildings erected or to be erected to be used, occupied and enjoyed as a place for the public worship of Allah and for preaching and teaching the precepts and teachings of the Muslim faith according to the principle and usages for the time being of the Muslim faith and for the instruction of children and adults and for the promotion of such religious and other charitable purposes as shall from time to time be directed by the Trustees.”
Although an application was made by counsel for Mr Mohammed and Mr Sheikh in the course of his submissions that this document be subject to restrictions as to who may see or refer to it, being a declaration of trust of a charity I see no reason to impose any restrictions upon who may see the document itself.[3]There is a dispute about the charity. There appear to be two strands to this dispute. The first is that there is a proposal to redevelop the site and although initial development proposals seem to have been turned down, there is a prospect of some development proposals being approved by the local Planning Authority. If approved, they would give a value to the site of the Mosque of something of the order of £10 million. That £10 million will undoubtedly, if realised, be subjected to charitable trusts and might have to be the subject of a scheme devised by the Charity Commissioners in the event that the application of the funds could not be agreed within the terms of the charity. So there is a dispute about how the development might proceed and what is to become of the site or proceeds of sale of the site.[4]But there is a quite separate dispute relating to the precise charitable trusts upon which the Mosque is held. There are three Trustees and registered proprietors of the Mosque: but of late Mr. Sheikh and Mr. Mohammed have sought to remove Mr. Zulfiqar Ali as a Trustee on, I think, the basis that his health prevents him from acting as a Trustee. But whether this has been correctly carried out is a matter for further examination. At all events, Mr. Zulfiqar Ali, even if not a Trustee, remains a registered proprietor of the charity property. But he is also a Trustee of another charity bearing a similar name, “the Anjuman-E-Islahul-Muslimeen (Madrasa Taleem Ul Islam) of United Kingdom”. This is sometimes referred to as the “Dewsbury Trust”. There is an issue about whether a Mosque is held on the Trusts of the Deed of Trust dated 1996 or upon the Trusts that apply to the Dewsbury Trust. I have outlined the dispute only in the barest outline for the full subtleties of the dispute have not been explained to me.[5]Those two disputes – how the property should be developed and where the benefit of the development should go, on the one hand; and what, precisely are the charitable trusts on which the Mosque is held, on the other – have produced dissention amongst the worshippers at the Mosque. Two of the Trustees, Mr. Sheikh and Mr. Mohammed, have commenced proceedings whereby they seek to exclude from the Mosque 13 named defendants whom they variously accuse of fomenting dissent within the Mosque, of seeking to take over the management of the Mosque, of seeking to occupy the Mosque or of conducting themselves violently when within the Mosque. These proceedings have been commenced without the consent of the Charity Commission because the two claimants consider that the dispute does not relate to matters within the charity itself and its administration and the achievement of its objects, but as dealing with a hostile and adverse claim is the charity properties.[6]On what I have seen, I am inclined to the view that these are charity proceedings which ought to be drawn to the attention of the Charity Commission who may have something to say about the way they are conducted. But, for present purposes, I intend to consider the application now before me notwithstanding the absence of Charity Commission consent, (if needed).[7]The application in its present form seeks an order against 13 named defendants endorsed with a penal notice prohibiting them, until after final judgment, from entering the Mosque except with the prior written permission of the claimants (who are two out of three of its registered proprietors and maybe the two (or perhaps two out of three) charity Trustees). Furthermore, by amendment made in the course of this application, the claimants seek an order excluding the 13 defendants from a two-mile radius around the Mosque notwithstanding that some of them live within that exclusion zone or have elderly relatives whom they visit also within that exclusion zone.[8]The basis on which this relief is sought is the witness statement of Mr. Solad Sakander Mohammed who speaks to the following: i) That the Trustees have not registered the charity with the Charity Commission; ii) That they are assisted by a small Management Committee whom they themselves have appointed; iii) That the Centre is open to the public and the day-to-day management is conducted by the Management Committee; iv) That there is no membership list nor are any membership records maintained; v) That some time in 2012 Mr. Zulfiqar Ali’s son, who is the fourth defendant, “started kicking up a fuss amongst the Trustees” because he felt that Mr. Zulfiqar Ali was being sidelined and not included in decision-making processes; vi) That in 2013 the fourth respondent, together with a group of young men, who acted in a thuggish and bullying manner, seized control of the Mosque for about a month, but the matter was resolved amicably; vii) That in late November 2017 the fourth respondent “started creating unrest at the Centre with his group”. Apparently the police were called to the site – a fact which does not seem to be in dispute – but on being told that the dispute was a civil one, the police departed. Why the police were called and who occasioned the conduct which led to the calling of the police, is a matter that is in dispute. viii) That in December “the Trustees”, that is to say the claimants, heard rumours “that some groups were getting together at different parts of London to discuss our proposed development”. It is said that the fourth to thirteenth respondents “were at the forefront of these activities” as were the first, second and third respondents who held many meetings and “tried to find ways to undermine the work of my co-Trustee and I”.[9]Then there is reference in the evidence to meetings in late December 2017 attended by various of the respondents including some persons from the Dewsbury Trust who apparently attended at the Mosque “to establish a new Management Committee”. Then on 19th December there was an altercation which led to a fight between the different factions leading to the intervention of the police and the evacuation of the Mosque. On 20th December the fourth respondent and his associates attended the Mosque and apparently changed the locks in an attempt to take control of the centre. Again, this led to police intervention. On 21st December there was another request to the police to intervene but they declined to do so on the basis that the dispute was a civil matter. Then on 23rd and 24th December, according to the claimants, there were further incidents leading to the intervention of the police. If the account of the claimants is accurate, there were aggressive attacks on the Mosque and a mob inciting violence and causing injury in order to get into the building. Such behaviour cannot be tolerated.[10]But following these incidents, it is the evidence of the claimants themselves that the ringleaders “have been very quiet”. However, the two claimants have had to leave the country to attend a conference and they fear that in their absence further incidents of a like nature will occur. They have also discovered that the eleventh and twelfth defendants have procured the incorporation of a company bearing the same name as the charity. The claimants fear that this is part and parcel of an attempted takeover.[11]It is on this evidence that the claimants seek an order barring the 13 respondents (at least two of whom do not appear to have attended the Mosque at all,) to be barred from attending the Mosque and excluded from a two-mile zone around the Mosque.[12]A number of simple points might be made about this application. First, it is brought by only two of the three Registered Proprietors so any property-based rights must be viewed with some caution until such time as the third Registered Proprietor is added to the claim, either as a claimant or as a defendant to be bound by the outcome of the decision. That is something that must be done urgently.[13]Secondly, in so far as property-based rights are concerned, the Registered Proprietors do not hold the land for their own benefit. They hold it (as the title registered discloses) as charity trustees. They are bound to permit the Mosque to be occupied and enjoyed as a place for the public worship of Allah and for preaching and teaching the precepts and teachings of the Muslim faith. It is, accordingly, to be open to the public who wish to enter for the purpose of enjoying the benefits of the charity. Of course, if there were individuals whose presence disrupted the achievement of the objectives of the charity, there is little doubt that they could be excluded. If indeed there were a resumption of any violent conduct or any attempt to occupy the Mosque or to take over the management of the Mosque in anything that was not a constitutional way, no doubt the claimants could obtain relief.[14]Thirdly, in so far as it is the objective of the claimants to prevent discussion about the proposals for the development of the Mosque site, they have no right to interfere with the discussion of those proposals even if that discussion causes them some difficulty in the pursuit of the policy that they wish to advance. They are, accordingly, not entitled to seek an injunction for the purpose of preventing discussion nor are they entitled to exclude people from a two-mile exclusionary zone around the Mosque in order to prevent discussion or demonstrations.[15]Fourth, on an application such as this, there can be no question of granting any sort of relief over until the conclusion of a trial. The most the claimants could properly ask for is for relief to be granted on an interim basis pending an adjournment over until such time as the defendants can have a fair opportunity to put in their evidence and the claimants have had a fair opportunity to respond to it. I would guess, having seen the material deployed on this occasion and heard argument, that this is not the sort of dispute which is going to be resolved in the applications court within two hours, even on an interim basis; and it will be necessary to adjourn to application to come on as an “application by order” with a time estimate of probably one day. So that is certainly the course I shall take.[16]But having disposed of those preliminary and procedural matters, I must now address the question that lies at the heart of this application: should there be interim relief granted pending the adjourned hearing? The relief sought by the claimants is, in my judgment, disproportionate. There can be no question of creating an exclusion zone. There might be a question of excluding people from the Mosque if that was the only reasonable way to achieve what is ultimately to be desired, which is the functioning of the Mosque as a centre of prayer and teaching for the community and for members of the Muslim faith generally.[17]I did not think that excluding 13 named individuals from attending a place of prayer was a proportionate remedy. I was prepared to declare that the court was satisfied that the defendants were entitled to attend the Mosque for the purpose of performing prayers at the usual prayer times, but then to restrain them from seeking to occupy the Mosque by themselves, their agents or associates or in like manner to take control of or to assume management of the Mosque or the assets of the Mosque or to behave in a violent or disruptive manner such as to disturb the worship of other attendees.[18]But counsel for the Claimants said that if I made an order in that form, that would raise more questions than it would answer, that there would be inevitable disputes over interpretation and that it really did not cover that part of the claimant’s concerns which relates to the discussion of their proposals for the development of the Mosque. So I am persuaded I should not grant an injunction in that form. I am therefore left in the position of refusing any interim relief pending the adjournment (until, I suggest, the first open date after 23rd April) of this present application.[19]In the absence of agreement on a sensible timetable for the exchange of evidence, I will give directions when I settle the form of the order.[20]The failure to obtain interim relief, either of the extended sort applied for or the more restricted sort, as I offered, does not mean that I endorse in any way what the respondents are said to have done. I am quite clear that pending the examination of this dispute by the court, there must be no attempt to occupy the Mosque, to take control of the Mosque or to assume management of the Mosque or of the assets of the charity. There can be no question of any respondent having permission to behave in a disruptive way or to participate in or permit disruptive conduct. But the courts cannot minutely govern the conduct of those who profess to follow the teachings of Allah in the Muslim faith by prescribing a rulebook as to exactly what may be done, by whom and when. If there is any repetition of the events of November and December 2017, that will be the clearest indication that some sort of relief is required pending the determination of this dispute at trial and no doubt that will be borne in mind.[21]I shall direct that the claimants shall forthwith provide a copy of the order I intend to make and a transcript of this judgment, as soon as it is available, to the Charity Commission and shall seek the direction of the Charity Commission as to the conduct of these proceedings. I also direct the defendants, in the event that those of them who represent the Dewsbury Trust are minded to commence proceedings relating to the Mosque and its assets, that they shall also seek the permission of the Charity Commission. I will ask counsel to agree a form of

order

and I so dispose of the application. The sensible order is to reserve the costs of today to the adjourned hearing, the return date. Does anyone want to say anything different? MR. DITCHBURN: My Lord, as I understand the effect of your order, the return date will effectively be the trial now? 22. (Discussion followed on costs) i). My first instinct was to adjourn the question of costs to the return date of this application but counsel appearing for the 4th, 5th and 12th defendants has drawn to my attention a fact that the 4th, 5th and 12th defendants may not be represented in the same way at the adjourned hearing as they have been on the occasion of this urgent interim application hearing. Mr. Winfield submits that it is wholly exceptional to make any order as to costs before the final outcome of the dispute is known at trial. ii). I do not accept that submission but I do see the point he makes that in the event that he is wholly successful at the interim hearing and a costs order is made in his favour, there may be a question about how just it was to have made any adverse order against him on this occasion given that he did in fact serve the application and evidence in time. iii). In the result I will make this order as to costs. The 4th, 5th and 12th defendants shall be entitled to their cost of today summarily assessed in the sum of £900 to be treated as costs in the application. The order will make the costs order in pro bono form and not for the personal benefit of the 4th, 5th and 12th defendants. The practical outcome of that is that in the event that at the return date the defendants are successful in fending off the form of relief sought, they will get their costs of today and those costs will be paid in pro bono form. (Discussion followed re directions) iv). You have had far too long for this case. I am not going to do the directions now. I am going to leave it to the two of you to try and agree. If you do not agree it, let me have a look at the order in the alternative form, I will sit in Chambers and I will do the order.

Cited in 2 later judgments