Mehboob Bhamani and Others v Abdul Sattar and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Nugee,Lord Justice Peter Jackson |
| Judgment Date | 26 February 2021 |
| Neutral Citation | [2021] EWCA Civ 243 |
| Date | 26 February 2021 |
| Docket Number | Case No: A3/2020/1894 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 243
Lord Justice Peter Jackson
Lord Justice Baker
and
Lord Justice Nugee
Case No: A3/2020/1894
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Mr Tom Leech QC sitting as a Deputy Judge of the High Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Gideon Roseman (instructed by Russell Evans Rahaman) for the Appellants
Alan Tunkel (instructed by Aman Solicitors) for the Respondents
Hearing date: 27 January 2021
Approved Judgment
Introduction
This is an appeal by the Claimants from an Order dated 6 October 2020 of Mr Tom Leech QC sitting as a Deputy Judge of the High Court ( “the Judge”), in which he dismissed their application for summary judgment.
The appeal is concerned with a charity known as Wembley Central Masjid which operates religious activities for Muslims in the London Borough of Brent. It provides a place of worship and a community centre at premises at 35 to 37 Ealing Road, Wembley, also known as the Wembley Central Masjid. In this judgment I will generally use “the Masjid” to mean both the charity and its premises but where it is helpful to refer specifically to the land I will refer to “the Premises”.
The Claimants are either members of the Management Committee, or trustees, of the Masjid. The Defendants are worshippers at the Masjid, some of them at any rate of long standing. In this action the Claimants claim an injunction to restrain the Defendants from entering the Premises. They applied for summary judgment to that effect. They relied on the simple proposition that they are entitled, on behalf of the Masjid, to possession of the Premises and as such entitled to refuse access to the Defendants.
Before the Judge the Defendants sought to defend the claim on the grounds that the Claimants were not exercising their powers as charity trustees for the purposes for which they were given and so as to further the purposes of the Masjid, but seeking to silence opposition to themselves, and that in attempting to exclude the Defendants from access to the Premises they were acting in breach of duty.
The Judge, in a thorough and commendably clear judgment dated 17 September 2020 at [2020] EWHC 2488 (Ch) ( “the Judgment” or “Jmt”) accepted that if this were so, it would amount to a defence to the claim for an injunction; and held that since this raised issues of fact which he could not resolve on the application for summary judgment, the application should be dismissed.
The Claimants now appeal, with permission granted by the Judge himself.
The Masjid
The Masjid is registered as a charity with the Charity Commission. It is unincorporated. We were not told when it was established but it is apparent that it dates back to at least 1980 as there is reference in its current constitution to an earlier version of the constitution adopted in July 1980. The version of the current constitution in evidence is a draft dated only 2015 but it is common ground that it was adopted in this form in 2015.
Details of the provisions of the 2015 constitution ( “the Constitution”) can be found in the Judgment at [6]–[10]. For present purposes the most relevant are the following. Article 3 provides:
“ Aims and objects:
The objects for which the Masjid is established are to promote for Muslims residing in the London Borough of Brent and surrounding areas as defined herein (“ the Community”):
(a) The advancement of the religion of Islam in accordance to the Qur'an and Sunnah and the belief in the finality of the prophethood of Muhammad (May the peace and blessings of Allah be upon him)
(b) The advancement of education including instruction in the Islamic faith;
(c) The relief of poverty;
(d) To provide facilities for daily prayers, the Friday prayer, Eid prayers and other religious activities on special Islamic days, including teaching classes in Arabic and Urdu languages including Qur'anic studies;
(e) To provide facilities for the advancement of and to promote the social welfare of the Community and to provide recreation and leisure with the object of upliftment and improving the conditions of the Community.”
That is followed by a list of certain specific powers.
Article 4 provides for membership. Articles 4(a) and (d) are as follows:
“(a) Any Muslim, whatever the Country of his/her origin with a belief in accordance to the Qur'an and the belief in the finality of the prophethood of Muhammad (May the peace and blessings of Allah be upon him) shall be entitled to be a member of the Masjid if he/she agrees to subscribe to the aims and objects of the Masjid and abide by the rules and regulations and contribute a subscription to the Masjid's fund. The Management Committee shall have the right to accept or refuse a membership application without assigning reasons.
…
(d) Membership shall be open to all Muslims regardless or race, colour or gender as stipulated in clause (a) above.”
Article 4(e) provides that members must be resident within a 3 mile radius of the Masjid (with the Management Committee having power to make an exception in special circumstances). It is not necessary to be a member to attend the Masjid, but membership confers, after 3 months, the right to vote in elections. By Article 7 the annual membership subscription is £20.
Article 5.1 provides for annual and extraordinary general meetings of the members. The members elect the Management Committee for a term of 3 years and may deal with other business. Article 5.2 provides for the Management Committee, consisting of between 5 and 11 members, including 5 Office Bearers (Chairman, Vice-Chairman, General Secretary, Treasurer and Education Secretary); it is responsible for the administration of the Masjid.
Article 8 is concerned with the fund and assets of the Masjid. Article 8(b) provides:
“The real property and all assets of the Masjid shall be vested in the name of “Wembley Central Masjid” and not in the name of any Trustee, Trustees, an individual or individuals.”
That is echoed in Article 13(c); Article 13 is concerned with the Trustees, of whom there are to be between 3 and 5, elected by the members for a 5 year term, and Article 13(c) provides:
“The Trustees shall not be proprietors of the real property or any other assets of the Masjid.”
Title to sue
Despite the provisions of Articles 8(b) and 13(c), it was pleaded in the Particulars of Claim, and admitted in the Defence, that the title to the Premises was in fact registered at HM Land Registry in the names of four individuals on trust for the Masjid, no doubt, as the Judge said, because it could not be registered in the name of the Masjid as an unincorporated association.
The claim was not however brought by the four registered proprietors (who were not named in the pleadings and whose registered title was not in fact in evidence). Instead the five Claimants were three of the Office Bearers and members of the Management Committee (the 1 st to 3 rd Claimants who are Chairman, Vice-Chairman and General Secretary respectively), and two of the Trustees (the 4 th and 5 th Claimants).
Before the Judge that gave rise to a number of questions in relation to their title to sue, their claim being for an injunction to restrain the Defendants from entering the Premises. These included (i) whether their title had been admitted on the pleadings; (ii) if so, whether that admission could be withdrawn; (iii) whether the members of the Management Committee had power to bring proceedings to restrain a trespass; (iv) and whether it mattered that not all members of the Management Committee were joined. The Judge dealt with these points in detail at Jmt [51]–[61], concluding that the Management Committee, being responsible for the administration of the Masjid, were “charity trustees” and had sufficient standing to bring the proceedings on behalf of the Masjid (following Muman v Nagasena [2000] 1 WLR 299), and that in circumstances where it appeared that all members of the Management Committee supported the proceedings, the failure to join them all did not matter as it was a question of form not substance. None of these conclusions was challenged on this appeal.
Background to the proceedings
There is a lengthy background to the proceedings. The account that follows is largely taken from the Defendants' version of events; we have not seen all of the evidence that was before the Judge and he did not need to, and did not, reach any conclusions on any of this, and I should make it clear therefore that none of these matters have been established, and many of them may be disputed.
It is evident that the affairs of the Masjid have not run smoothly for some years. The Charity Commission have had a lengthy engagement with the Masjid, and had occasion to write to the trustees in January 2015, December 2015 and February 2017, and to carry out a visit in October 2018. A follow-up letter in March 2019 referred to it being clear to the Commission that the charity was suffering from an internal dispute between the trustees and some of its members; and to the Commission having received a large number of complaints from members of the Masjid.
Mr Habib Qamar, the 2 nd Defendant, dates the origins of the tensions to the election of the Management Committee (including the 1 st Claimant, Mr Mehboob Bhamani) in 2014. Mr Qamar's account is that the Masjid serves a very diverse community made up of a number of different cultural backgrounds and Islamic traditions, and that the 1 st Defendant, Mr Abdul Sattar, who had been the Imam for many years, had actively promoted diversity and welcomed everyone in the community from...
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