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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Ahmeds & Ors v Mukith & Ors [2022] EWHC 315 (Ch) (15 February 2022) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2022/315.html Cite as: [2022] EWHC 315 (Ch) |
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BUSINESS AND PROPERTY COURTS AT NEWCASTLE
PROPERTY, TRUSTS AND PROBATE LISTS (Ch. D)
25 Castle Garth Newcastle, NE1 1RQ |
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B e f o r e :
____________________
(1) MR RAJU AHMED (2) MR HUSSAIN AHMED (3) MR SHOFIQUR RAHMAN (As representing themselves and all other members of the Shahjalal Mosque and Islamic Culture Centre except for the Defendants) |
Claimants |
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- and - |
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(1) MR HAJI ABDUL MUKITH (2) MR SHAH FAZLUL KARIM (3) MR AFSOR KHAN (4) SHEIKH MOHAMMED SHAH JHAN (5) MR AFRAZ HUSSAIN QURESHI |
Defendants |
____________________
Mr Monsur Ahmed (Lay Representative) for the Defendants
Hearing date: 17th to 20th January 2022
Date handed down: 15th February 2022 (via CVP)
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Crown Copyright ©
Her Honour Judge Claire Jackson:
Background
The Constitution of SMICC
"The Islamic Cultural Centre shall elect every two year at its Biannual General Meeting a President, a Vice President, a General Secretary, a Treasurer and 6 executive members as a panel. (The officers shall be ex-officio members of the executive). The President, General Secretary and the Treasurer shall also be the Trustees of the Mosque for their elected term. The Executive Committee shall meet at least once per calendar month".
"The Islamic Cultural Centre shall elect every two year at it Biannual general meeting a president, vice president, a general secretary, and an assistant secretary, a treasurer and six executive members as a panel. (The officer shall be ex office members of the executive). The President General Secretary and treasurer trustee's power terminated. The trust deed of the organisation should remain as present registered until any violation from the trustee individual. The executive committee shall meet at least once per calendar month".
21.1. Clause 6 of the Constitution provides for the duties and responsibilities of the Executive Committee. This provides that:
"A) The President shall preside at all meetings of the Committee, and the Executive Committee shall be responsible for the day to day running of the Islamic Cultural Centre. Every matter shall be determined by the majority of the votes of the members present and voting on the question, but in the case of equality of vote, the President will have the final casting vote.
B) It shall be the duty and function of the Executive Committee to carry out the General Policy and business of the Islamic Cultural Centre and to provide for the administration, management and control of the affairs and property of the Islamic Cultural Centre."
21.2. Clause 7 of the Constitution provides for elections to the Executive Committee to take place biennially at the Biennial General Meeting by the members as determined by clause 12. Members are not eligible for election if they break any of the guidelines of the Mosque, if they have a criminal conviction or a current finding of bankruptcy.
21.3. Clause 8 of the Constitution provides for the term of office of the Executive Committee (two years from the end of May) unless re-elected.
21.4. Clause 12 of the Constitution establishes the membership requirement for SMICC. As originally agreed it provides:
"A) Membership is open to all Bangladeshi Muslims.
B) Voting membership of the Islamic Cultural Centre shall be open to all Bangladeshi Muslims living in the City of Newcastle upon Tyne postcode area (NE1 to NE7, and parts of NE13 and NE15 as outlined on the map enclosed). Every member on payment of such subscription is entitled to vote at any General Election. Any member wishing to vote or take part in the election biennially at the Biennial General Meeting must become a fully paid member by the second month of the financial year (end of May). Voting membership is open to all Bangladeshi Muslims over the age of 18 years.
C) Membership fees will be £10 per term. The Executive Committee has the power to determine the membership fees from time to time."
21.5. It is to be noted that no map has been provided to the Court by any party despite each of their contested constitutions being before the Court. It is said that clause 12b was amended in 2019 to allow membership to all Bangladeshi Muslim residents of NE1 to NE7 and NE13 and NE15.
21.6. Clause 13 of the Constitution provides for the holding of meetings including a Biennial General Meeting in May at which the Executive Committee elections are held. Twenty-one clear days' notice is to be given of the Biennial General Meeting. Any vote at the meeting is to be by way of a show of hands or a ballot.
21.7. Clause 14 of the Constitution as originally drafted provides the quorum requirements at an Executive Committee meeting and at the Biennial General Meeting. At the Biennial General Meeting the quorum is two-thirds of the fully paid members. The Defendants assert that this clause was amended in 2010 such that the quorum for the Biennial General Meeting was fifty members.
21.8. Clause 15 of the Constitution provides for the keeping of minutes and accounts and for the opening of a bank account in the name of SMICC, with the signatories to such cheques on such account (the Treasurer and either the President or Secretary), and the financial limits upon the signatories.
21.9. Clause 16 of the Constitution deals with amendments to the Constitution. It provides:
"A) Articles 3(a) and 3(b) will never be subjected to any change, alteration or amendments. This constitution may be amended by two thirds majority of the voting members at the Biennial General Meeting.
B) All amendments proposed by the members shall be submitted to the Executive Committee at least fourteen (14) days before the Biennial General Meeting."
21.10. Clause 20 provides for the making and enforcement of rules by the Executive Committee. It is common ground that guidelines for the Mosque were approved by the Executive Committee under this provision in 2002. Mr Ahmed drew my attention to two clauses of the Guidelines. These provide that:
"I) Those who eligible and wish to become members to the institution require register through secretary of the mosque in individually. The applicant may require photographic ID to prevent Forgery.
J) Voter will need to show Membership card to Vote."
The Issues
23.1. Are the parties bound by the result of 5 October 2021 elections?
23.2. If not, are the Claimants the lawfully elected Executive Committee with authority to run the day-to-day affairs of SMICC as a result of the elections held in May 2018?
23.3. If the Claimants do not have authority to run the day-to-day affairs of the SMICC, who does?
23.4. Was clause 4 of the Constitution amended in 2010 to remove the President, General Secretary and Treasurer from their position as trustees and replace them with the First to Fourth Defendants?
23.5. If not, should the Court order the First to Fourth Defendants to transfer the legal title of the premises at Sceptre Street to the Chairman, Secretary and Treasurer of the Executive Committee?
The Law
26.1. A constitution governing the operation of an unincorporated association is a contract between the members of the association (In Re Sick and Funeral Society of St John's Sunday School, Golcar [1973] Ch 51, 60);
26.2. The Court is to ascertain the meaning which the Constitution would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties when the Constitution was approved (ICS Ltd v West Bromwich BS [1998] 1 WLR 896, 912 per Lord Hoffman);
26.3. A Court may only infer a term into a contract where the term is reasonable and equitable, necessary to give business efficacy to the contract, so obvious it goes without saying, capable of clear expression and does not contradict any express terms of the contract (BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 16 ALR 363);
26.4. Parties to a contract can agree in a contract that a certain position will form the basis for a transaction, whether it be the case or not. Where that happens neither can subsequently deny the existence of the facts and matters upon which they have agreed, at least as far as concerns those aspects of their relationship to which the agreement was directed (Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd [2006] EWCA Civ 386).
The Witnesses
Findings on the Issues
Issue 4: Clause 4 of the Constitution
Issue 1: Control of SMICC
AND UPON the parties having agreed terms for the holding of elections to the Executive Committee and of the Arbiters of the Shahjalal Mosque and Islamic Cultural Centre as set out in the Schedule annexed hereto
6.1 any application for membership shall be made, and the relevant subscription paid, to the Election Commissioner who:
6.1.1 shall determine whether the application is accepted, having regard to the criteria at clause 12 of the Constitution, and his decision shall be final;
6.1.2 shall collect the subscriptions paid by members;
6.1.3 shall immediately after the Elections pay one half of such subscriptions to each of the Claimant's solicitors and the Defendants' solicitors, in each case to be held by those solicitors pending agreement between the parties or further order of the Court.
...
6.6 None of the parties shall make any verbal claim or announcement, or publish within the Mosque any notice or other written material, relating to the Elections or their claim to be the legitimate Executive Committee of the SMICC. Any such notice or literature currently published in the Mosque shall be taken down and/or removed forthwith.
53.1. Mr Zaman was to conduct the elections;
53.2. In doing so he was to determine the procedure for the elections including applications for membership of SMICC.
62.1. it could not be held in May (the agreed date was October);
62.2. it could not be held at a Biennial General Meeting presided over by the Fifth Defendant (as no such meeting could be called given the dispute between the parties);
62.3. the effective quorum and voting clauses could not be enforced as they were disputed between the parties, and;
62.4. membership could not be closed as at May 2021 (as the parties agreed the membership list needed to be updated).
Conclusion
15 February 2022