Haider Mckenna And Others V. Mohammed Rafique And Others
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Sir Stephen S.T. Young |
| Court | Sheriff Court |
| Date | 15 January 2008 |
| Docket Number | A1042/07 |
| Published date | 16 January 2008 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN
A1042/07
| JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC in the cause HAIDER McKENNA AND OTHERS Pursuers and Appellants against MOHAMMED RAFIQUE AND OTHERS Defenders and Respondents |
Act: Miss Gibson, solicitor, Paull & Williamsons, Aberdeen
Alt: Miss Swarbrick, solicitor, Anderson Strathern, Edinburgh
Aberdeen: 15th January 2008
The sheriff principal, having resumed consideration of the cause,
(1) allows the appeal and recalls those parts of the interlocutor of the sheriff dated 1 June 2007 which read respectively "Refuses to grant the interim orders sought in craves 4(i), (ii), (iii) and (iv) in hoc statu" and "meantime reserves the question of expenses relating to the hearing on 29 May 2007";
(2) grants warrant of new to cite the third defender by serving upon him a copy of the writ as amended and warrant on a period of notice of twenty one days and ordains him, if he intends to defend the action or make any claim, to lodge a notice of intention to defend with the sheriff clerk at the Sheriff Clerk's Office, Castle Street, Aberdeen within the period of notice after such service;
(3) interdicts ad interim the first defenders and the second and third defenders, both as representatives of the first defenders and as individuals from:-
(i) intromitting in any manner or way whatsoever, either directly or indirectly, with the property and assets that were vested in Charity No. SC028038 or its appointed representatives as at 20th May 2007 and, in particular but without prejudice to the foregoing generality, intromitting in any manner or way with the following bank accounts:-
(a) Bank of Scotland Account No. 00103268
(b) Bank of Scotland Account No. 00103276;
(ii) taking any steps of whatsoever nature, either on their own behalf or through any representative, directly or indirectly, to intromit with, or transfer the title of, or otherwise burden the title of the various properties comprising the subjects 164, 166, 168 and 170 Spital, all as more particularly described in Title Nos. ABN14501, ABN15594, ABN75449 and Sasine Register Search Sheet No. 39008 for the County of Aberdeen;
(4) interdicts ad interim the first defenders and the second, third and fourth defenders, both as representatives of the first defenders and as individuals from holding themselves out as entitled to use the name the Aberdeen Mosque and Islamic Centre or to represent Charity No. SC028038 in any manner of way whatsoever;
(5) quoad ultra appoints parties to be heard on all questions of expenses at Aberdeen Sheriff Court on 30th January 2008 at 9.30 am under reference to the ensuing note.
Note
Introduction
[1] For some years members of the Muslim community in Aberdeen have arranged and held congregational prayers and other Islamic religious activities at a mosque situated in the Spital, Aberdeen. On 6 August 2000 a number of these persons met together and approved a new constitution under the following narrative:-
We, the Muslims of Aberdeen have agreed to, and have adopted, the present constitution and do hereby establish an organisation to be known as and hereinafter referred to as the Aberdeen Mosque and Islamic Centre.
[2] This constitution contains sixteen separate articles, the majority of which are further subdivided into a number of sections. I shall examine these in more detail shortly. For present purposes it is necessary to notice article IV which provides for the establishment of a Board of Trustees who have various responsibilities including holding in trust the property of the Mosque and Islamic Centre (which I shall refer to hereafter as "the Mosque Charity"). I dare say that there are other issues in the background but, from a legal point of view, the essential question in this case is who are the persons who are now entitled in terms of the constitution to control this property. In a nutshell, the pursuers say that they, or at least four of them along with the fourth defender, are while the defenders (or at least all of them apart from the third defender who has not entered an appearance as he has not yet been cited) say that they are.
[3] The answer to this question depends upon the significance in light of the constitution of certain events which took place during the first half of 2007. Before rehearsing these events, it will be convenient to set out the relevant parts of the constitution.
The constitution of the Mosque Charity
[4] Article I provides, inter alia, as follows:
1. The Aberdeen Mosque and Islamic Centre is a charitable, non-profitable, non-political organisation.
2. Aims and Purposes
The purpose of the Aberdeen Mosque and Islamic Centre is to serve the best interests of Islam and of the Muslims of Aberdeen and the Aberdeenshire area. Towards this end, the Aberdeen Mosque and Islamic Centre shall:
1. Arrange and hold congregational prayers and Islamic religious activities at appropriate times;
2. Promote unity and joint action among the Muslims;
3. Conduct social, cultural, and religious activities in the best traditions of Islam
3. The Aberdeen Mosque and Islamic Centre can co-operate with and support any Islamic organisation that shares the same aims and purposes.
[5] Article III deals with membership. It provides, inter alia, as follows:
1. The membership of the Aberdeen Mosque and Islamic Centre shall consist of "members" of the Muslim Community of Aberdeen and the Aberdeenshire area.
3. All members must abide by the terms of this constitution.
[6] Article IV deals with the Board of Trustees. It provides, inter alia, as follows:
1. The Board of Trustees shall consist of five members of the Aberdeen Mosque and Islamic Centre and two patrons who could be from outside Aberdeen. The Executive Committee as explained in Section 3 of this Article, shall nominate all of these members. None of the five Board members shall be a member of the Executive Committee or an auditor during the tenure of their office.
3. The Executive Committee shall nominate all members of the Board of Trustees and the nomination shall be approved by the General Meeting. In case the General Meeting does not approve a member nominated for the Board of Trustees by the Executive Committee, the latter shall nominate a second person.
8. The Board of Trustees shall be responsible for the following:
1 - Finding ways and means of externally raising funds for the Mosque and Islamic Centre.
2 - The general management, maintenance, and growth of the Mosque and Islamic Centre already established.
3 - Co-signing withdrawals of funds in accordance with Article VI; Section 7
4 - Overseeing the general activities of the Mosque and Islamic Centre and ensuring that they are within the framework of the constitution.
5 - Holding in trust the property of the Mosque and Islamic Centre.
10a. Members of the Board of Trustees serve voluntarily. Inactive members of the Board may be asked to resign by the Executive Committee, with the consent of the rest of the Board of Trustees.
10b. In case the inactive member refuses to resign, the Executive Committee may decide to dismiss if 3 out of the 5 trustees and 5 out of the 7 Executive Committee members agree to it.
10c. If a Trust Member resigns, dies, leaves the jurisdiction of the Aberdeen Mosque and Islamic Centre or is dismissed, the Executive Committee shall nominate another member in the following General Meeting as per section 3 of this article.
[7] Article V deals with the Executive Committee. It provides, inter alia, as follows:
1. The Aberdeen Mosque and Islamic Centre's Executive Committee shall consist of the selected officers as stated in Section 2, of this article.
2. The selected officers shall be President, Vice-President, General Secretary, Treasurer and three other members.
3. The term of the Mosque Executive Committee shall be one year.
5. If more than half of the Executive Committee resigns/vacate their positions, new members will be chosen by a General Meeting which will be called by the rest of the Executive Committee or the Board of Trustees. The newly formed Executive Committee shall carry out the duties until the end of the term.
8. The President shall be responsible for the following:
1. The general management of all the activities of the Aberdeen Mosque and Islamic Centre;
2. Directing and co-ordinating all the activities so as to achieve the purposes of the Aberdeen Mosque and Islamic Centre;
3. Calling and presiding over meetings of the Executive Committee and General Meetings.
The remainder of this article goes on to describe in some detail the further duties of the President and also the respective duties of the Vice-President, General Secretary, Treasurer and the remaining three members of the Executive Committee.
[8] Article VI of the constitution deals with finances and the maintenance of various bank accounts and provides in section 4 (not section 7 as indicated in article IV.8-3) that all cheque withdrawals shall be co-signed by any two of the President, Vice-President and Treasurer and by the Chairperson of the Board of Trustees.
[9] Article IX deals with general meetings. It provides, inter alia, as follows:
1a. Annual General Meeting (AGM)
The Aberdeen Mosque and Islamic Centre shall have its AGM on the last Sunday in January each year. A public announcement after Friday together with a written notice of the meeting shall be made at least two weeks prior to the date of the meeting.
1b. In this meeting the Executive Committee shall present an ANNUAL financial and progress report of all its activities.
2. General Meeting:
The Aberdeen Mosque and Islamic Centre shall have at least one General Meeting during the year excluding the Annual General Meeting (AGM). A public announcement after Friday together with a written notice of the meeting shall be made at least two weeks prior to the date of the meeting.
3a. Extraordinary General Meeting
An Extraordinary General Meeting may be...
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