Dr Mohamed H Jaffer v Safder Jaffer
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mellor |
| Judgment Date | 18 May 2021 |
| Neutral Citation | [2021] EWHC 1329 (Ch) |
| Docket Number | Case No: PT 2021-000063 |
| Date | 18 May 2021 |
| Court | Chancery Division |
[2021] EWHC 1329 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PROPERTY, TRUST AND PROBATE LIST
IN THE MATTER OF THE WORLD FEDERATION OF THE KHOJA SHIA ITHNA-ASHERI MUSLIM COMMUNITIES
AND IN THE MATTER OF THE CHARITIES ACT 2011
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Mellor
Case No: PT 2021-000063
Matthew Smith (instructed by Womble Bond Dickinson (UK) LLP) for the Claimants
Robert Pearce QC (instructed by DAC Beachcroft LLP) for the First to Sixth Defendants
Hearing date: 13th May 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON Mr Justice Mellor
Introduction
I have to determine two interim applications in this Part 8 claim which was commenced by the Claimant on 22 January 2021, pursuant to permission granted by Marcus Smith J on 4 January 2021. The claim concerns the World Federation of the Khoja Shia Ithna-Asheri Muslim Communities (‘the Charity’), an unincorporated association registered under the Charities Act 2011. An unfortunate dispute has arisen over challenges to the conduct of elections in January 2020 for the post of President of the Charity for the term 2020–2023 and the eligibility of the First Defendant (hereafter D1 and no relation to the Claimant), who was declared to be the winner of that election by the Electoral Commission of the Charity on 21 February 2020, to stand for office and what the Claimant terms the purported appointment of the First to Sixth Defendants (generally, the Ds and ‘the Interim Office Bearers’) as “interim office bearers” of the Charity at a meeting in July 2020. The Seventh Defendant, Her Majesty's Attorney-General, has given no indication of any intention to participate in these proceedings.
Before I describe the events which have led up to this action and the current applications, I need briefly to outline how the Charity is organised and operates.
The Charity
The Khoja Shia Ithna-Asheri are a worldwide community of approximately 150,000 persons, linked by ethnicity. They follow the Shia Ithna-Asheri faith, a branch of Islam. Originally from Gujarat, they have local communities, known as Jamaats, in Africa, Australasia, Europe, India, North America, Pakistan and elsewhere. There are approximately 100 Jamaats.
The Charity has a written constitution dated May 2017 and its objects are:
i) to promote the Khoja Shia Ithna-Asheri faith throughout the world;
ii) to relieve poverty among the members of the Community (i.e. all those persons throughout the world who are of the Shia Ithna-Asheri faith);
iii) to educate members of the Community.
The Charity's income varies but in the year to 31 December 2019 was reported to be over £15 million.
The Jamaats in the regions listed above are grouped into six Regional Federations. Each Jamaat and Regional Federation has its own constitution, and is self-governing. The six Regional Federations are the members of the charity. A Jamaat which is outside the territory of a Regional Federation may be an associate member of the Federation. There is one such associate member, a Jamaat in Dubai.
The charity's constitution provides for two committees, or councils, the Conference and the Executive Council (‘ExCo’). The Conference is said to be the supreme governing body of the Charity. It is made up of around 154 people. It meets triennially and may also hold extraordinary meetings at other times. The Executive Council meets as needed. It is a body of up to 70 members, made up of the Office Bearers and groups of councillors who are, respectively, appointed by the President, elected by the Conference, and appointed by the six Regional Federations of Jamaats. The constitution also provides for an Electoral Commission, whose function is to conduct elections required by the constitution.
The constitution provides for six Office Bearers: the President, Vice President, Secretary General, Assistant Secretary General, Honorary Treasurer and Assistant Honorary Treasurer. The Office Bearers are the “charity trustees” of the charity for the purposes of the Charities Act 2011. They hold office for simultaneous terms of three years.
The President is elected triennially by an electorate of eligible voters in Jamaats and the number of such electors is about 47,500. Clause 20 of the Constitution sets out details of how the election must be conducted. This is supplemented by a document entitled ‘Standard Operating Procedures’ (‘the SOP’), adopted by Conference on 4 December 2010. The Vice President, Treasurer and Assistant Treasurer are elected by Conference. The Secretary and Assistant Secretary are appointed by the President.
The 2020 Election
The most recent triennial election for the office of President was held on 30 and 31 January 2020. There were approximately 47,424 eligible voters, of whom around 9,200 voted. The result of the election is expressed in Electoral College points. The First Defendant, Safder Jaffer, received 53.03 points out of a total of 88. The runner-up, Dr Jiwa, received 18.26 points. The First Defendant was therefore elected by a substantial margin. The result of the election was announced by the Electoral Commission on 21 February 2020.
A triennial meeting of the Conference was convened for 13–15 March 2020 and was due to be held in person in Mombasa, Kenya. In the normal course of events:
i) the Office Bearers who were in post from 2017 to 2020 (“the Former Office Bearers”) would have stood down at the end of the Conference;
ii) Safder Jaffer, the President-elect, would have taken office at the end of the Conference;
iii) the Conference would have elected the three new Office Bearers it is required to elect;
iv) the new President would have appointed the two new Office Bearers he is required to appoint;
v) the new team of Office Bearers would have held office to the next triennial conference in 2023.
Complaints about the Election and subsequent events
At various times, a number of complaints have been made about the conduct of the 2020 Election and the eligibility of the First Defendant to stand as a candidate. For example, on 19 th March 2020, solicitors for the Claimant sent a lengthy letter before claim setting out his concerns about the electoral process. These complaints form the first limb of the Claimant's claim in this action. The letter of 19 th March was responded to by solicitors acting for the Former Office Bearers, as the six trustees of the Charity, on 24 April 2020. I stress that it is not my role at this stage of this action to assess or decide on the validity of the various complaints or the responses to them, but I simply observe that a number of the points made by the Claimant concern a lack of adherence to the terms of the Constitution or SOP.
I have no doubt that, in the normal course of events, the complaints lodged by then about the conduct of the 2020 election would have been considered at the Conference planned to start on 13 March 2020 which could have and might well have been adjourned to receive reports about the conduct of the election. In fact, two reports were published. The Electoral Commission of the Charity published a reasonably lengthy final report on 26 June 2020 which considered some but not all of the complaints which have been made about the election. In addition, a Report was published by the Presidents Strategic Sub-Committee (‘the PSS’) on the 2020 Presidential Election. The PSS has no formal status in the Constitution but its Report relates how it was formed at an ExCo meeting held between 30 November-2 December 2018. The PSS comprises the President of the World Federation and the Presidents of the six Regional Federations, and is clearly intended to exert influence in the Charity. Its purpose is stated as ‘ to strategize key matters and challenges faced by the Community and to discuss issues of great importance to the Community, at times of emergencies; man-made, natural or otherwise and to give our recommendations for action to the Exco’.
The PSS Report (which I am told was issued on 24 th May 2020) is relatively short and deals with matters at a relatively high level. Nonetheless, it made a firm recommendation to ExCo that the 2020 Election should be annulled and the then current Electoral Commission should be dissolved. The Report concludes by emphasising ‘ adherence to our constitution is of paramount importance. Therefore we are sending a message for the future organisation of WF [the World Federation] that sticking to the legal and substance form of our constitution is the only sustainable way forward.’
As a result of the inability of the Conference to meet in March 2020, the Charity Commission made an Order dated 26 June 2020 under the Charities Act 2011 s 105 (which took effect by way of authorising temporary amendments to the Constitution) the effect of which was to:
i) require the triennial Conference that had been due to meet in March 2020 to commence no later than 1 June 2021, set on the assumption that the pandemic would have subsided before then;
ii) prohibit the holding of an Extraordinary Conference earlier than 1 June 2021;
iii) provide that the Former Office Bearers should continue to hold office until the conclusion of the next...
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