Muman v Nagasena
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NOURSE,LORD JUSTICE MUMMERY,LORD JUSTICE SWINTON THOMAS |
| Judgment Date | 01 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0701-23 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTF 1999/0142/2 |
| Date | 01 July 1999 |
[1999] EWCA Civ J0701-23
Lord Justice Nourse
Lord Justice Swinton Thomas and
Lord Justice Mummery
CCRTF 1999/0142/2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Medawar QC)
Royal Courts of Justice
Strand, London WC2
MISS R J CALDER (instructed by Messrs Liyana & Co, London E10) appeared on behalf of the Appellant Claimants.
MR B RILEY (Mr D Daly 1.7.99) (instructed by Messrs Pillai & Jones, London E15) appeared on behalf of the Respondent Defendant.
Thursday, 1st July 1999
Lord Justice Mummery will deliver the first judgment.
This is an appeal, with the leave of this court granted on 10th February 1999, from an order of His Honour Judge Medawar in the Central London County Court on 19th August 1998. After legal argument and without hearing any evidence or making any findings of fact, he dismissed the proceedings for possession of premises at 84 Dacre Road, Plaistow, London E13.
The premises are used as a vihara or Buddhist temple by the charity called the Ambedkar International Mission. That charity has been registered since 1978. It was established for the advancement of religion. The particular purposes are identified in a constitutional document made by way of scheme in the Chancery Division. Clause 3 of the constitution headed "Aims of the Charity" is in these terms:
"Insofar as they are charitable under the law of England and Wales, the aims of the Charity are:
(1)to advance the teachings of Buddhism as revived by the late Dr B R Ambedkar and in furtherance thereof:
(a)to support and maintain Buddhist Monks doing Dhamma-Dutta work
(b)to provide and maintain a place or places of worship firstly in London and elsewhere thereafter
(2)To advance public education by the following means:
(a)by promoting the socio-religious and cultural teachings of the late Dr Ambedkar
(b)by promoting research into the history and problems of the Untouchables and their descendants and by publishing the results of such research
(c)by providing or assisting in the provision of classes in English and Indian languages
(d)by providing facilities for the education of Indian women who are in need of education to enable them to take their place in Society and to improve their conditions of life.
(3)To relieve poverty."
The vihara at 84 Dacre Road contains living quarters for two to three monks.
The claimants contend that they are the governing council and trustees of the charity and as such are entitled to possession of the property. The defendant, Mr Bhikku Nagasena, claims to be the patron of the charity. He is in actual occupation of the property. He contends on a number of grounds that the claimants are not entitled to an order for possession against him. Indeed, he counterclaims for a declaration that:
(1)he is a statutory tenant of that part of the property that he occupies; and
(2)the claimants are not entitled to an order for possession.
It is necessary to summarise the factual background to these unfortunate proceedings. There has been a long history of internal dispute in this charity. At one time there were at least three sets of legal proceedings arising solely out of the issue of the occupation of the vihara. The documents indicate that the costs incurred in those proceedings are in excess of £90,000. The background to those proceedings is explained in the judgment given by Mr Martin Mann QC, sitting as a judge of the High Court, in the Chancery Division on 7th November 1995.
The Scheme
It was hoped that these disputes would be settled by a scheme for the administration of the charity which was made in the Chancery Division on 27th March 1996. The scheme contains a constitution, from which I had already quoted the aims of the charity. It is also necessary to refer to clauses 5, 7, 9 and 10.
Clause 5 provides for a governing council in whom the management of the charity is vested. That council consists of the patron and not more than seven other persons who are full members of the charity and who can read and write in the English language. Provision is made for the first governing council of the charity. Thereafter it is provided that the members of the governing council (other than the patron) shall be elected annually at the annual general meeting of the charity.
Clause 7 provides for a patron. The charity at all times shall have a patron. Clause 7(2) provides that the first patron is the defendant, Bhikku Nagasena. He is the patron
"… unless and until at the first General Meeting of the Charity the full members of the Charity by simple majority elect to be the Patron some other specified person who is willing and eligible to be the Patron."
Clause 7(3) provides that thereafter the patron shall remain the patron of the charity until certain events take place: (a) his retirement; (b) his death; (c) he ceases to be a member of the Theravada Sangha; (d) he becomes incapable of exercising his functions by reason of ill health; and (e):
"the full members of the Charity in General Meeting by a two-thirds majority elect to be the Patron some other specified person who is willing and eligible to be the Patron."
Clause 9 sets out the procedure for general meetings of the members. There is provision for an annual general meeting of the members of the charity to be held in April of each year or as soon as possible afterwards. The principal business of such a meeting will be not only to receive reports and accounts but also to elect the members of the governing council. There is provision in clause 9(2) for the holding of an extraordinary general meeting of the members of the charity to be called at any time by the patron, by the secretary at the direction of the governing council or by at least 30 full members. It is provided that all categories of member are entitled to attend an extraordinary general meeting but only full members and the patron are entitled to vote. Clause 9(3) provides that the quorum at a general meeting shall be one-third of the number of full members of the charity or 30 full members, whichever is the less. There is then provision within clause 9(3) that:
"All questions other than the removal of the Patron pursuant to clause 7(3)(e) above, the alteration of the provisions of this Constitution and the dissolution of the Charity shall be decided by a simple majority of the full members present in person and voting at the meeting …"
Clause 10 deals with land and buildings. It provides that:
"All land and buildings belonging to the Charity shall be vested in the Official Custodian for Charities."
The Issues
There is no dispute that (a) the defendant was appointed as the first patron or resident monk of this charity and (b) the claimants were appointed as the first members of the governing council and charity trustees. Very little else is agreed. It is alleged by the claimants that an extraordinary general meeting of the charity was convened and held on 27th October 1996; that 81 members were present and that 80 of them elected a Dr Siri Sumana as patron by a simple majority. This fact is pleaded and relied on in the particulars of claim setting out the grounds on which an order for possession is claimed against the defendant. It is alleged in paragraph 3 of the particulars of claim that the defendant had only a service occupancy of part of the residential accommodation of the vihara. It is alleged in paragraph 4 that on 27th October 1996 at an extraordinary general meeting of the members of the charity the defendant was deselected as patron and another patron was elected.
Following that resolution, in fact on the same day, a letter was sent to the patron terminating his licence to occupy the residential accommodation in the vihara and requiring him to vacate within 24 hours. He refused to vacate. He changed the locks and thus denied access to the other members and brought the life of the mission to a standstill.
In the defence and counterclaim various grounds are set out resisting the claim for possession. One of those grounds is that the defendant has not been lawfully deselected as the patron. A point is taken that the procedure which should have been followed for the...
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