Mehboob Bhamani v Abdul Sattar
| Jurisdiction | England & Wales |
| Judge | Tom Leech |
| Judgment Date | 17 September 2020 |
| Neutral Citation | [2020] EWHC 2488 (Ch) |
| Court | Chancery Division |
| Date | 17 September 2020 |
| Docket Number | Case No: BL-2019-000354 |
[2020] EWHC 2488 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUST AND PROBATE LIST (CH D)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Leech QC (sitting as a Judge of the Chancery Division)
Case No: BL-2019-000354
Mr Gideon Roseman (instructed by Russell Evans Rahman) for the Claimants
Mr Howard Smith (instructed by Aman Solicitors Advocates) for the Defendants
Hearing date: 2 September 2020
Approved Judgment
I direct that pursuant to CPR PD39A 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.
Tom Leech QC:
Table of Contents
| Heading | Paragraph |
| Introduction | [1] |
| The Masjid | [6] |
| The Code of Conduct | [13] |
| The Parties | [15] |
| February 2019 | [20] |
| The Undertakings | [37] |
| Subsequent Events | [40] |
| Closure of the Property | [44] |
| The Charity Commission | [45] |
| Summary Judgment | [47] |
| Interim Injunction | [75] |
| Disposal | [85] |
| Addendum | [87] |
Introduction
By Application Notice dated 10 March 2020 the Claimants applied for summary judgment under CPR Part 24 for a final injunction to restrain the Defendants from entering or remaining on the Wembley Central Masjid, 37 to 37 Ealing Road Wembley HA0 4AE, which is a place of worship and prayers and a community centre. The property itself is owned and operated by a charity which is registered at the Charity Commission under registration no. 285630. Although the same name is often used to describe both the land and buildings and the charity, in this judgment I will adopt the terms used in the Particulars of Claim and refer to the charity as the “ Masjid” and the land and buildings as the “ Property”.
There were two other applications before the Court. In the alternative to summary judgment, the Claimants applied for an interim injunction in the same terms as their claim for final relief. By Application Notice dated 19 December 2019 a number of the Defendants applied to be discharged from undertakings which they had given to the Court. However, at the hearing on 2 September 2020 they withdrew that application.
The Claimants are three members of the management committee (the “ Management Committee”) and two of the trustees of the Masjid (the “ Trustees”) and the Defendants are worshippers and members of the local community. The primary issue which arises on the application for summary judgment is whether the Claimants have a unilateral or unfettered right to prohibit the Defendants from entering the Property.
Mr Gideon Roseman appeared for the Claimants and Mr Howard Smith appeared for the Defendants. There was no issue between them about the test for summary judgment in a case of this kind which involves contested issues. Mr Roseman cited the summary of the principles by Lewison J (as he then was) in EasyAir Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] approved in in AC Ward Ltd v Catlin (Five) Limited [2009] EWCA Civ 1098 at [24]. I set out that summary without the relevant citations (which are not necessary for the purposes of this judgment):
“i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success.
ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable.
iii) In reaching its conclusion the court must not conduct a “mini-trial”.
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents.
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial.
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case.
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction.”
Although there were many contested factual issues between the parties, Mr Roseman submitted that it was unnecessary for the Court to resolve any of those issues because the Claimants had a superior possessory and proprietary interest in the Property which entitled them to possession and to exclude the Defendants (who have no rights of occupation). This submission had an attractive simplicity about it but before addressing it, I set out the principal facts and the background to the present dispute.
The Masjid
The Masjid and its use of the Property are governed by a single constitutional document (the “ Constitution”). The version which the First Claimant, Mr Mehboob Bhamani, exhibited was a draft dating from 2015 although it was common ground that the constitution was adopted in this form. Article 3 set out the aims and objects of the Masjid and was in the following form:
“The objects for which the Masjid is established are to promote for Muslims residing in the London Borough of Brent and surrounding area as defined herein (“ the Community”):
(a) The advancement of 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.
In furtherance of these objects but not further or otherwise the Masjid shall also have the following powers:
(i) To provide legal advice and social welfare and services to poor Muslims unable to obtain such advice elsewhere;
(ii) To provide and maintain a library and reading rooms for the study of Islamic literature;
(iii) To raise funds and invite and receive contributions from any person or persons whatsoever by way of subscription and otherwise provided that the Masjid shall not undertake any permanent trading activities in raising funds for its primary charitable objects;
(iv) To provide and organise funds for the relief of persons in need following disasters within the UK and abroad.”
Article 4 provided for membership of the Masjid. It provided for different types of membership including Life and Associate Membership. Article 4(a) provided as follows in relation to applications for membership:
...“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.”
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