Reverend Berhanu Bisrat and Others v Archimandrite Aba Girma Kebede and Others
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Purle |
| Judgment Date | 13 February 2015 |
| Neutral Citation | [2015] EWHC 840 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC/2015/000150 |
| Date | 13 February 2015 |
[2015] EWHC 840 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
His Honour Judge Purle QC
Case No: HC/2015/000150
Mr Franklin Evans (instructed by Wellers Law Group) appeared on behalf of the Claimants
Mr Z Simret appeared pro bono on behalf of the above-named Defendants (except Defendants 5, 6, 12, 13, 14 and "Persons Unknown") some of whom also addressed the Court in person
This case concerns the Ethiopian Orthodox Tewahedo Church of St. Mary Debre Tsion, which is an unincorporated association and a registered charity; I shall call it the charity. It holds property in Battersea in Queenstown Road, where the activities of the church are carried out from. There is a trust deed establishing the charity which is dated 11 June 1992, though the present premises in Battersea were only acquired as late as 2011 following several years of successful fund raising.
There is an issue as to who are the persons entitled to control the trust. The trust deed lays down detailed provisions which have been amended (at least purportedly) in 2006 and (the claimants would say) subsequently, but there has never been, as far as the present evidence goes, full compliance with the requirements of the trust deed either in its original or in its amended form. There should, for example, have been a general council from which trustees should have been taken but that has never been brought into effect. Moreover, whilst there appears to have been a degree of acquiescence over the years in relation to the constitution of the governing body, there has been no such acquiescence in recent times since around 2012.
In 2007 there was an appointment of trustees, as required by the governing documents of the charity, which was apparently for three years, and which appears, by general consent, to have been extended for a further two years, there being no further extension beyond that date. Thus, it is said on the one side that the appointment (if effective) lapsed and, on the other side, that nothing having replaced them, the appointments continued.
The defendants, apart from the fourteenth defendant, which is Her Majesty's Attorney General, and the fifth, sixth, twelfth and thirteenth defendants, who have expressed their entire neutrality, claim to be the existing trustees, as required by the governing documents of the charity: that is to say the first four defendants and defendants seven to eleven inclusive. They claim to be the present governing body. The first defendant is also carrying out the functions of administrator which is the person in day-to-day control of the charity. Throughout this judgment, the expression "the trustees" is used to denote those entitled or claiming to be entitled to control the affairs of the Charity under the Trust Deed and amendments. There may be different from the individuals registered as legal owners at the Land Registry, who do not claim in that capacity to be entitled to control under the charity's governing documents.
There is an unfortunate division amongst those who have worshipped and wish to continue to worship at the church operated by this charity. The Ethiopian Orthodox Church is one of the oldest churches, of great distinction and establishment. There have, however, over recent decades been political eruptions within Ethiopia which have impacted upon the Ethiopian community in this country. Many Ethiopians are inimitable towards (and in some cases refugees from) the existing regime in Ethiopia, which is predominantly under the control of the Tigrean People's Liberation Front ("TPLF" for short).
In around 2012 a Tigrean patriarch (Abune Mathias) was appointed in Addis Ababa where the mother church is located (subject to one point to which I shall come) who has in turn appointed a Tigrean Archbishop (Abune Enthos) to the North Western European diocese and who therefore is relevant to the operation of the charity's church in Battersea because it is said to be part of that diocese. The one point to which what I have just said is subject is this: At the time of the adoption of the trust deed in June 1992 it is said by the claimants that the true patriarch was Patriarch Abune Merkorios, who is still alive but who, in circumstances which I do not need to explain and indeed could not if I did need to explain, left Ethiopia. A rival synod to the synod of the mother church in Ethiopia has been set up in Seattle in the USA. The claimants are loyal to the Seattle synod; the defendants are said to be loyal to the mother church in Addis Ababa and thus to Patriarch Abune Mathias and Abune Enthos (the North Western European Archbishop). Unfortunately, both Patriarch Abune Mathias and Abune Enhtos are perceived by a number of those loyal to the Seattle synod and Patriarch to be allies of the TPLF regime to which those supporting the Seattle synod are opposed. That has resulted (and there may be other reasons) in the relationships between the two groups of church celebrants breaking down. In fact, until around 2012, the two groups lived and worshipped together in apparent harmony, but that is sadly no longer the case and there have been meetings and church services which have been disturbed by dissent and disagreements. The result is that a number of people (including the claimants and those who may loosely be described as their followers) feel unable to worship at a service which is conducted by those who are loyal to Patriarch Abune Mathias and Abune Enthos and worship, it is said, at the church premises, but outside. This is a matter which is less than satisfactory to them because they are deprived (they say) of access to the Holy Tabot, which is a representation of the Ark of the Covenant, is consecrated within the church premises and is very important for the purpose of celebrating the sacraments and for various other purposes connected with the Ethiopian Orthodox faith.
A Part 8 claim form has been issued with the permission of the Charity Commission (because the proceedings plainly embrace charity proceedings within the meaning of the Charities Act 2011) which seeks to resolve a number of issues. I am not going to read them all out, but it is evident that a number of solutions may be determined by the court. The first issue which needs to be decided is whether there is a valid trust at all or whether the trust fails for uncertainty. What then also needs to be decided through a series of considerations of subsequent amendments and various appointments and purported appointments of the governing bodies is whether there are any validly appointed (for want of a better word) trustees, meaning those who control the affairs of the charity, or whether, as appears to be one real possibility, there have been no valid appointments either at all or at least since the expiry of what appeared to be the consensual appointments of 2007, as extended. There have been purported appointments in 2013 on what may loosely be called the claimants' side, but the validity of the convening of the meeting or meetings to give effect to that (and a preceding alteration to the byelaws) is challenged, as is the conduct of the meeting or meetings. There have, in addition, been what is described in the defendant's evidence as the co-opting of additional trustees on the defendants' side earlier last year, or maybe in 2013, so that the present controlling body of trustees (for want of a better word) are the nine individuals that I mentioned earlier; namely, the individually-named defendants other than defendants five, six, twelve and thirteen.
I say straight away that as defendants five, six, twelve and thirteen made a clear declaration of neutrality it seems to me that they need, at least at this stage and for the foreseeable future, take no further part in these proceedings. That also was the position of the claimants once they had heard and seen what these defendants had to say. Accordingly, it seems to me that the proceedings against those individuals must be stayed, so that they do not feel the need to take any further part in the future in these proceedings, though they will, as with anyone else, be free, if they wish, to attend any part of the proceedings that they wish to attend, assuming that a court is available which is large enough to accommodate everyone, as members of the public. They will not however be required to spend money on legal costs, or be at risk of being liable for anyone else's costs hereafter. I say nothing about the costs to date because I would need to hear arguments on that, but I would be astonished if I am asked, as against those defendants, for any costs order whatever the outcome because they have, as I have said, adopted a position of entire neutrality.
There have been issues raised on the defendants' side as to the adequacy of the service of the proceedings against a number of the defendants. It...
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...are not beneficiaries in the strict sense, they are beneficiaries or objects of the charity in a loose sense. In Bisrat v Kebede [2015] EWHC 840 (Ch) His Honour Judge Purle QC stated at [22]: “I think one has to be careful of the use of the word “beneficiary” in this context. A charitable ......
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