Mohinder Singh Khaira v Daljit Singh Shergill
Jurisdiction | England & Wales |
Judge | Lord Justice Mummery,Lord Justice Hooper:,Lord Justice Pitchford |
Judgment Date | 17 July 2012 |
Neutral Citation | [2012] EWCA Civ 983 |
Docket Number | Case No: A3/2011/2548 & 2011/2548B |
Court | Court of Appeal (Civil Division) |
Date | 17 July 2012 |
[2012] EWCA Civ 983
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
HHJ DAVID COOKE
Case No 8BM30458
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Hooper
and
Lord Justice Pitchford
Case No: A3/2011/2548 & 2011/2548B
MR MARK HILL QC (who did not appear below ) and MR JK QUIRKE (instructed by Seymours Solicitors LLP) for the Appellants
MR ROBERT PEARCE QC (instructed by Ford & Warren) for the Respondents
Hearing date: 18 th May 2012
Introduction
These proceedings, which were instituted on 25 June 2008, originated in disputes about the trusteeship and governance of two Gurdwaras used by members of the Sikh community as meeting places for religious worship. One Gurdwara is in Birmingham. The other is in High Wycombe.
The claim and the counterclaim are the subject of orders made by the Charity Commission under s. 33 of the Charities Act 1993. The relief claimed is for declarations that the defendants have been removed from their positions as trustees and officers of the Gurdwaras in dispute and replaced by the claimants as lawfully appointed trustees and officers. Injunctions and other ancillary relief are also claimed.
Four years on the appellants (the defendants) want the court to grant a permanent stay or to strike out the case. They say that it should not be allowed to go on, because the trial judge would be faced with the impossible task of resolving issues between the parties about the religious doctrines and practices of adherents of the Sikh religion. They are not legal questions. They are questions which a court has no business deciding, because, if it attempted to do so, it would become embroiled in religious controversies about subjective beliefs and the linked internal affairs of a religious body on none of which can the court properly make a judicial ruling.
The key questions in the case are whether the 9 th claimant, Sant Baba Jeet Singh Ji Maharaj, is, as he and his fellow claimants assert, "the Third Holy Saint" and whether he is "successor" (via the Second Holy Saint) to the First Holy Saint, who was the founder of the Gurdwaras in the 1980s. In rather more concrete terms, is the 9 th claimant in the designated line of spiritual succession that entitled him to exercise a power conferred by the trust deeds of two religious charities to remove the defendants as trustees and to replace them with his fellow claimants?
The basis of the defendants' strike out application is that the contested claim to be the "successor" unavoidably turns on matters of religious faith, doctrine and practice on which the parties hold differing inward beliefs and allegiances. A secular court will not adjudicate on the truth of disputed tenets of religious belief and faith, or on the correctness of religious practices: those questions are non-justiciable, because they are neither questions of law nor are they factual issues capable of proof in court by admissible evidence. Judicial method is equipped to deal in hard facts objectively ascertainable, directly or by inference, from probative evidence: it is not equipped to determine the truth, accuracy or sincerity of subjective religious beliefs about doctrine and practice. As disputes about that kind of truth are outside the recognised perimeter of judicial competence, the judge below should have granted the application to stay the proceedings and refused permission to amend the pleadings. This appeal should therefore be allowed.
The respondents (the claimants) disagree and say that the issues in these proceedings are justiciable in the English courts. They have brought the case to secure the due administration of valid charitable trusts for the advancement of religion, which were established under, and are governed by, English law. The critical issue is the meaning and effect of two English trust deeds, which confer a power on the "successor" of the First Holy Saint to appoint and remove trustees of the two charities. The claimants say that that is a question of construction. They also claim that they can prove that the 9 th claimant is the Mukhia (or Head) of Nirmal Kutia, a Sikh institution based in the Punjab. As that Mukhia, the 9 th claimant is "successor" within the meaning of the trust deeds. On that view the case is within the inherent jurisdiction of the court to uphold and enforce public trusts and their due administration. The judge was right to dismiss the defendants' application for a stay and to grant permission for the claimants to amend their Particulars of Claim. The appeal should be dismissed and the case should be allowed to proceed to trial in the usual way.
Removal and appointment of trustees
The claimants and the defendants are members of the Sikh community. Most of the parties to this dispute have either been or are trustees of one or other of the Gurdwaras. No-one challenges the charitable status of the trusts. HM Attorney General has been joined as a party in his capacity as the constitutional protector of charity, but he has taken no part in this appeal.
The trust deeds contain an express power to remove and appoint trustees. The power was originally vested in the First Holy Saint. The present disagreement is about whether the 9 th claimant became entitled to exercise that power following the death of the Second Holy Saint in March 2002.
In support of the assertion that the power is now exercisable by the 9 th claimant as "successor", the claimants rely on a range of matters described in more detail below. They include the outcome of litigation in the Indian Courts where his claim to be the Mukhia of the Nirmal Kutia Johal was upheld. The claimant trustees allege that the 9 th claimant has validly appointed them to replace the defendants as trustees of the Gurdwaras.
The defendants deny that. They do not believe in the legitimacy of the 9 th claimant as "successor" nor do they believe that they owe any inward allegiance to him. They do not accept that he had, or has, power to appoint fellow claimants as new trustees of the charitable trusts in their place. The jurisdiction of the court to construe the terms of charitable trust deeds is not disputed. The defendants' point is that the critical question whether the 9 th claimant is, as he claims to be, "successor" of the First Holy Saint, cannot be answered by a legal process of construction alone.
The court would have to look beyond the wording of the deeds for objective criteria, which it could apply to answer the question of succession, and to resolve the disagreements about the internal governance of the religious affairs of the Gurdwaras. The defendants say that it is impossible for the court to do that, as it would involve venturing into a judicial no-go area of religious doctrine and practice-a "judicial no-man's land", as Lord Wilberforce (see below) once described what lies beyond the land of justiciability.
In the absence of relevant legislation, it is for the courts to define the nature and scope of the judicial process. A definition or description of the judicial process inevitably sets limits to its scope of application. The good sense of the judiciary has led to the recognition of boundaries of the constitutional authority and judicial competence of municipal courts in such sensitive areas as transactions between foreign sovereign states and matters of religious belief and practice.
I turn to consider the principle of non-justiciability discussed in the authorities which illustrate where and how the boundary is drawn.
The law
Mr Mark Hill QC, appearing for the defendants, and Mr Robert Pearce QC, appearing for the claimants, made excellent submissions on the nature of the non-justiciability principle in general, and on its particular application to the doctrines and practices of religious communities with particular reference to cases where the religion and its institutions are not established by law as part of the State: cf the established constitutional position of the Church of England and of Anglicanism.
The basis of the general principle on which the English courts decline to entertain legal proceedings as non-justiciable was analysed by Lord Wilberforce in his opinion in Buttes Gas and Oil v. Hammer (No 3) [1982] AC 888. The court stayed that case on the ground that, if it had gone on, the court would have become involved in adjudicating upon transactions between foreign sovereign states. Lord Wilberforce identified (at p.938B-C), as one of the factors for judicial self-restraint or abstention, the absence of "judicial or manageable standards by which to judge these issues" leading to what he described as a "judicial no-man's land." He said that the principle is not one of judicial discretion: it is "inherent in the very nature of the judicial process."
How does that principle apply to a case involving a dispute about the legitimacy of the person claiming to be spiritual leader and its impact on the internal governance of religious charities? The claimants say that, where there is "a bond of union" (see below) between the adherents of a religion, like Sikhism, that bond will supply the "judicial or manageable standards" against which the conflicting contentions of the parties can be judged on a given state of facts. Whether or not there are such standards, against which the contentions of the parties can be judged, depends on the precise nature of the pleaded issues for the...
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