England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE AULD)

		Royal Courts of Justice Strand London WC2
		12th May 1993.

LORD JUSTICE ROCH: There is a Mosque in Luton called the Bury Park Jame Masjid. It has a written constitution which provides for the objects and aims of the Muslim community who attend and worship at the Mosque; for the property of the Mosque to be held by trustees named in the constitution and for the affairs of the Mosque to be conducted by an executive committee known as the Bury Park Mosque Committee.

The committee is to consist of fifteen members including a President, Vice President, Secretary, an Islamic Cultural Secretary, a Treasurer and ten members. The constitution requires that all members of the committee should be pious. The committee is to be elected every two years. The election is to be held on or before 14 days from the expiry of the outgoing committee's term in office. That period for the election can be extended to three months from the expiry of the outgoing committee's term.

The committee is to be elected by the contributors at a general meeting of the Bury Park Mosque Community. The voting is by the raising of hands. The contributors are those members of the Bury Park Mosque Community who are Muslim, and who have contributed at least £10 to the Mosque.

The constitution contains these aims for the Mosque, amongst others:

"To work together for Islamic cultural and Islamic educational achievement; to promote the Muslim faith and to make arrangements for performing the religious ceremonies and other Islamic cultural affairs."

To promote these aims, the executive committee, on 10th April 1984 entered into a written agreement with Mufti Abdul Hannan that he become the Imam, that is the religious leader and teacher at the Mosque. His responsibilities were set out in the written agreement. One of his obligations was to refrain from all types of political activities and to refrain from causing differences amongst Muslims by way of speech, lectures, writing controversial articles, and so forth.

The Imam's appointment was to be for three years, but was to be extended as agreed between him and the executive committee. The executive committee was to be responsible to the Imam for his monthly salary. It was to allow him four weeks' annual leave with full pay, and it was to provide suitable accommodation for him.

In 1987, disputes arose within the community of the Bury Park Mosque. An attempt to amend the Mosque's constitution was made at a general meeting of the community on 25th April 1987. On 29th August 1987, three members were purportedly elected trustees, Aklakur Rahman Chowdhury, Syed Montaz Ali and Cherag Ali Khan. On 27th August 1988, there was an apparent election of a new executive committee.

An action was brought to the Chancery Division of the High Court by the plaintiffs who included the appellant in this appeal, and the three persons I have just named, together with four other members of the Mosque. The defendants were the three trustees of the Mosque and they were also members of the executive committee.

In the Chancery Court on 21st February 1990, Mr Justice Mervyn Davies declared that the purported amendments to the constitution of 25th April 1987 were not valid, that the three persons had not been elected trustees on 29th August 1987, and that the purported election of the executive committee on 27th August 1988 was invalid. The Chancery Court made the following orders:

First, that pending the election of a new executive committee, the existing executive committee would continue to act as the executive committee for the Mosque.

Second, the existing executive committee would, by notice given not later than 31st March 1990, convene a special general meeting for the purpose of electing a new committee.

Third, that the roll of voters was to be compiled in accordance with rule 2 of the general rules in the constitution, that is to say, it was to consist of the contributors.

Fourth, that the old committee would send the roll of voters, thus compiled, to the appellant, Sulaiman Ali, before it gave notice of the special general meeting, and if the appellant disputed the validity of the roll, such dispute was to be decided by the Imam, whose decision was to be final. The Court made other orders which are not material to the present appeal.

On 8th May 1990, the Imam signed a list of voters. The plaintiffs in the Chancery action were not satisfied with this list, and they applied to Mr Justice Mervyn Davies on nth May 1990. On that day, the Judge ordered; first, that the three defendants be restrained from holding a special general meeting of the Mosque community for the election of a new executive committee; second, that the special general meeting arranged for 12th May be postponed until such time as the defendants had fully complied with the third and fourth orders made on 21st February 1990, and for that purpose the existing executive committee should forthwith give to the first plaintiff -- that is the appellant in this appeal -- the list of voters referred to in the final paragraph of the document signed by the Imam on 8th May 1990; third, that the first plaintiff, within 21 days of receiving the list, should state in writing who was to be added to the list and who was to be deleted, with his outline reasons in a document to be delivered to the committee, such document to reflect those eligible to vote on 25th March 1990, and such document to be submitted by the committee to the Imam within 7 days thereafter, with the committee's comments in writing thereon; fourth, that the Imam should consider any objections and comments, and his decision thereon should be given within 7 days; fifth, that upon the Imam having dealt with the objection, the committee should be at liberty to hold a special general meeting to elect a new committee, on the basis of the new electoral roll as it had emerged from the first plaintiff's objections and the Imam's consideration of those objections, and sixth, that the parties were to have liberty to apply to the Judge on 48 hours notice.

The Imam's judgment was given on 18th June 1990. It is a document running to 16 pages. It begins by confirming that the Imam received the voters list from the Mosque committee on 11th June 1990, and received another list from the appellant with his comments and objections regarding the committee's list of voters. Thereafter, the Imam received the committee's comments on the comments and objections of the first plaintiff, Mr Sulaiman Ali.

To decide the various issues that were raised, the Imam devised five categories, (a) to (e): category (a) was a list of 41 names accepted by the committee as being common both to its list and the list produced by the first plaintiff. The Imam declared those 41 persons eligible to vote. He then set out the 41 names and addresses so that there could be no confusion.

Category (b) was a list of 14 names which the appellant maintained should be added to the list of voters. Of those, 11 were names of businesses, and three were names of individuals. Of the three individual ones, the Imam decided that two were already included in the list of voters provided by the committee. The Imam decided that the third name was that of a person who lived in London, who had not contributed to the Mosque and who, therefore, was not entitled to vote. That name was excluded from the list. The Imam decided that the names of establishments or businesses were not to be included in the list of voters. That decision seems to be incontrovertible, as the constitution refers, in regulation 2 of the general regulations to "every Muslim" and that finding has not been disputed.

Category (c) listed some 304 male persons who, according to the appellant, were contributors in that they had contributed at least £10 to the Mosque. The submission of the executive committee was that those persons had not qualified as contributors. The Imam, in his judgment, pointed out that there was no proof that these people had made the necessary contributions. In his decision, the Imam then said this:

"I did not wish to take upon myself the task of going from door to door of 304 persons to verify the claim of contribution, nor did I think the Court intended me to get involved in this enormous task of fact finding, by oral evidence. I understood my task was to give decisions on the facts presented to me by both sides."

As there was no proof of payment, the Imam declared the 304 persons ineligible to vote.

Category (d) contained the names of 2 5 female members of the Mosque. The Imam decided that they were not eligible to vote on two grounds: the first was that women do not participate in the management of the Mosque. The Imam added that he understood some of the women listed had protested against the inclusion of their names in the list. The second reason was that the Holy Koran and the command of the Prophet Mohammed prohibited the participation of women in a public institution such as a Mosque.

The fifth and final category was a list of four names which the appellant asserted should be deleted from the Mosque committee¹s list of voters, one of the names because it had been included twice, and three of the names because they had not achieved adulthood. The Imam decided that those names should be deleted from the list of voters prepared by the executive committee.

The Imam then said this:

"I have done my best to take everything into account before a decision is given. I have not allowed myself to be influenced by either side. I bear in mind that I am the Imam of the Mosque and as such I must be fair to all and keep myself above any conflict. I feel deeply honoured to have this task given to me by the honourable court to carry out and which I have done faithfully and to the best of my ability."

The Imam decided the issues raised on the voters' list by the committee, and the appellant, on the material placed before him.

One complaint made by the appellant is that the Imam did not search for evidence himself; in other words, it is said that the Imam should have acted as an inquisitor, rather than simply acting as a judge. Another complaint that was made is that the Imam, having received the committee's comments on the list prepared by the appellant, did not afford the appellant a further opportunity to reply to the comments by the committee.

On 3rd October 1990 the matter was brought by the appellant and the other plaintiffs in the Chancery action before Mr Justice Mervyn Davies. In the appellant's affidavit, sworn for the purposes of that application, the appellant stated in paragraph 23:

"I therefore ask this honourable court to extend the injunction granted on 11th May 1990, pending proper compliance with all aspects of the orders of 21st February and 11th May 1990. I also ask that this court should make such further directions as it is deemed just and appropriate and in particular that an independent and neutral person be appointed to adjudicate on the compilation of the voters' list, and further, that an independent and neutral body be appointed to oversee the conduct of the election itself."

Mr Justice Mervyn Davies having read that paragraph from the appellant's affidavit, and stated that the appellant's affidavit also alleged various errors in the list of voters remaining after the Imam's decisions, stated that the appellant was reflecting on the Imam's competence and impartiality. Mr Justice Mervyn Davies then said:

"Having read the evidence on both sides and the judgment of the Imam, I decline to make any order as sought by the applicant. The order of 11th May states that the Imam's decision as to the list is to be final... If the order of Imam is final, I cannot in this case act as a Court of Appeal. The Imam was appointed for this purpose, the order says his decision is to be final and that, so far as I am concerned, is the end of the matter. But I add this; had there been evidence on the part of the applicant that was in any way persuasive that there had been some irregularity in the conduct of the Imam, no doubt then some steps could have ensued in this court by way of quasi-judicial review and, perhaps, some relief might have been granted to the applicant. But having read the evidence and in particular the judgment of the Imam, I see no trace of irregularity which would justify me in setting aside the Imam's list. I was taken through SA 8 (that is the Imam's judgment) and I may say I was extremely impressed with the care and clarity with which the Imam has discharged the task which I put before him. No doubt, by taking a tooth-comb one or two, or even more, names might have been added or taken away, but the task has been done well and I think that the application by Mr. Sulliman Ali is wholly unjustified. The application is dismissed. "

There were by that time in existence affidavits from some 39 people resident in Luton, who claimed to be members of the Mosque community. Two of those deponents said in their affidavit that their names were on the list of voters, although they had made no contribution to the Mosque and their names should not have been there. The remaining 37 deposed that they were members of the community, that they had contributed varying sums, all in excess of £10, towards the Mosque, that their names were not on the list of voters, but that their names should have been. They further deposed that the contributions that they made had been made either to members of the existing executive community or to the Imam. Four of those deponents exhibited to their affidavits receipts in respect of contributions made by them to the Mosque. Three of those receipts were dated, one was not. All those receipts were either signed or initialled.

The appellant, in his second affidavit in these proceedings -- that is the proceedings for judicial review -- claims that Mr Justice Mervyn Davies did not have the opportunity to read and examine those 39 affidavits.

On 5th October 1990 the applicant made application for leave to move the High Court for judicial review of the Imam's judgment of 18th June 1990. The relief sought was an order quashing that decision, and for an order that 304 persons be added to the voters' list, and an injunction restraining the executive committee from holding a special general meeting to elect a new executive committee. The grounds on which relief was sought began with a recitation that the Imam was an employee of the respondent, that is to say of the existing executive committee, and was partial and personally interested in the voting list.

The first ground on which relief was sought was that the Imam had not acted with impartiality. The second was that the Imam had acted in breach of the principle of natural justice, that no man was to be judge in his own cause. That ground was based on the alleged fact of the Imam having been employed by the existing executive committee. Again, it was alleged that the Imam had not been independent, that he had been partial, and had reached his decisions maliciously. The third ground was that there was a great danger of a breach of the peace, if the proposed elections were to take place, in a way which deprived over 300 people of their right to take part.

The fourth ground was that the existing executive committee and the Imam had threatened members of the community, including the appellant, saying they were not members of the community, that they were not to enter the Mosque, and that they were not to exercise their right to vote.

On 5th October 1990, I granted leave to move the High Court for judicial review of the Imam's judgment of 18th June 1990, considering that there was good reason for extending the period in which the application could be made under Order 53, rule 4, sub-rule 1. An interim injunction was granted preventing the holding by the Mosque executive committee of an election meeting on 6th October, as had been scheduled, until the hearing of the application for judicial review or until further order.

The application was heard by Mr Justice Auld on 30th August 1991. He dismissed the application on the grounds that the application was not justiciable, in that the role played by the Imam did not contain an element of public law so as to attract the supervisory jurisdiction of the High Court. Mr Justice Auld added that had he reached a different conclusion on this jurisdictional point, he would still have dismissed the application because the applicant had not made out, on the evidence, the grounds for judicial review set out in the application, namely partiality and malice on the part of the Imam because he was an employee or appointee of the existing executive committee.

This appeal is brought against that decision. The grounds in the Notice of Appeal are first, that Mr Justice Auld improperly declined jurisdiction. It is said that the Judge failed to direct his mind to the fact that the Imam had been appointed by the Chancery Court to adjudicate upon the roll of voters and was not performing there a task as would a judge of the consistory court, nor was he exercising the role of a religious leader.

Secondly, even if Mr Justice Auld were right in deciding that the Imam was acting in a way equivalent to being a judge of a Consistory Court, the Judge had misdirected himself on the law because the relief sought was by way of orders of mandamus and prohibition which the High Court has jurisdiction to make in respect of decisions of an Ecclesiastical Court.

Thirdly, that the Judge should have found that the Imam had exceeded the jurisdiction conferred on him by the Chancery Court by disqualifying from the roll of voters 3 04 members of the Mosque community without looking into or considering the evidence. Further, the Imam had no jurisdiction to disqualify women from the roll of voters, not having been appointed to act as a Judge in a religious court.

Fourthly, Mr Justice Auld had erred in law, basing his judgment upon a misapprehension of the facts, namely that the Imam was acting as a religious leader and was applying religious law when he was not. It is to be noted that, in effect, this fourth ground repeats the first ground on which relief is sought.

The fifth ground was that there was abundant evidence before the Judge that the Imam had acted in excess of his jurisdiction, and without any jurisdiction to disenfranchise five members of the Mosque who had produced sworn affidavits that they had paid the £10 qualification fee.

The sixth ground is that, apart from recourse to judicial review in the High Court, there is no other remedy available to the applicants, there being no religious courts in the Muslim community in the United Kingdom in which a remedy for the violation of individual rights under the Mosque's constitution could be obtained. That fact clothes the issue raised by this application with public law consequences; the public law consequences being the danger of breaches of the peace, and the necessity to maintain law and order. In his submissions this morning, Mr Nusrat has added a seventh ground, namely the public interest in the proper administration of charities in this country.

The first and essential issue is whether the applicant's claim for relief can be brought by way of judicial review. In my opinion the answer depends on whether the applicants are seeking the performance or proper performance of a public duty by some public or other similar authority, or are seeking to enforce a public law right. In deciding cases the Courts have adopted various tests, but it has to be remembered, as was said by the Master of the Rolls, Sir John Donaldson, in R v. Panel on Take-overs and Mergers, ex parte Datafin PLC and another [1987] QB 838 E:

"In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction."

In a more recent case, Reaina v. the Chief Rabbi ex parte Wachman. [1992] 1 WLR, 1036, a case which had to do with the disciplinary functions of the Chief Rabbi in the United Kingdom. Mr Justice Simon Brown, in giving his judgment, when considering the public element, said this:

"Mr Beloff invites my attention to certain passages in the judgments of the Court of Appeal both in Law's case and in the Datafin Case [1987] Q.B. 815. I need not recite them. Their effect is clear enough. To say of decisions of a given body that they are public law decisions with public law consequences means something more than that they are decisions which may be of great interest or concern to the public or, indeed, which may have consequences for the public. To attract the court's supervisory jurisdiction there must be not merely a public but potentially a governmental interest in the decision-making power in question. And, indeed, generally speaking the exercise of the power in question involves not merely the voluntary regulations of some important area of public life but also what Mr Beloff calls a 'twin track system of control.' In other words, where non-governmental bodies have hitherto been held reviewable, they have generally been operating as an integral part of a regulatory system which, although it is itself non-statutory, is nevertheless supported by statutory powers and penalties clearly indicative of government concern."

That is a passage with which I would respectfully agree. The source of the authority of the body or person whose act or decision it is sought to review, is one factor. Has the person or body been appointed or established by statute or by statutory instrument, or by the Crown in the exercise of the Royal Prerogative?

In this case, the Imam was fulfilling a task which the Chancery Court had invited him to undertake. The Imam was not a party to the Chancery action and could not have been compelled to undertake the role asked of him by the Court. Mr Nusrat for the appellant accepted, during his submissions, that the Imam was appointed by the Court, with the agreement of the parties.

Another factor is the nature and source of the Imam's power to make the decisions he did. That, in my view, was not based on public law. It came from a Court Order, binding on the parties to the Chancery action. In turn, the action before Mr Justice Mervyn Davies arose out of the constitution of the Bury Park Mosque, the construction and application of which, as between members of the Bury Park Mosque Community, were matters of the Law of Contract, matters of private law.

Mr Nusrat referred this Court, during his submissions, to the decision of the Court of Appeal in Lee and the Showmen's Guild of Great Britain. [1952] 2 QB. 329. Mr Nusrat read this passage from the judgment of Lord Justice Denning, as he then was, at page 342:

"Although the jurisdiction of a domestic tribunal is founded on contract express or implied, nevertheless the parties are not free to make any contract they like. There are important limitations imposed by public policy. The tribunal must, for instance, observe the principles of natural justice. They must give the man notice of the charge and a reasonable opportunity of meeting it. Any stipulation to the contrarv would be invalid. Thev cannot stimulate for a power to condemn a man unheard."

Then, after some citations from authorities Lord Justice Denning continued:

"Another limitation arises out of the well-known principle that parties cannot by contract oust the ordinary courts from their jurisdiction.......

They can, of course, agree to leave questions of law, as well as questions of fact, to the decision of the domestic tribunal. They can, indeed, make the tribunal the final arbiter on questions of fact, but they cannot make it the final arbiter on questions of law. They cannot prevent its decision being examined by the courts. If parties should seek, by agreement, to take the law out of the hands of the courts, and put it into the hands of a private tribunal, without any recourse at all to the courts in the case of error of law, then the agreement is to that extent contrary to public policy and wrong."

I would disagree with no part of that passage, but it has to be remembered, that that case was an action commenced by writ, and Lord Justice Denning began his judgment with these words:

"The jurisdiction of a domestic tribunal, such as the committee of the Showmen's Guild, must be founded on a contract, express or implied."

At page 346 of his judgment, his Lordship said:

"The remedy by certiorari does not lie to domestic tribunals, but the remedy by declaration and injunction does lie, and it can be as effective as, if not more effective than, certiorari. It is, indeed, more effective, because it is not subj ect to the limitation that the error must appear on the face of the record."

Those passages in Lord Justice Denning's judgment, in my view make it clear that there the Court was dealing with a private law matter, and had that Court had to decide whether judicial review was an appropriate remedy, the Court would have decided that it was not.

The Courts to which application for judicial review are made will also consider whether, if judicial review is refused, there is any other effective remedy. Here, in my view, there was another effective remedy, namely an application to the Chancery Court, such as the application made and heard by Mr Justice Mervyn Davies, on 3rd October 1990, and refused by him, following a hearing of submissions.

It may be that that application would have been more effective had the attack been directed against the conduct of the existing executive committee in drawing up the voters list, in a way which did not comply with paragraph 3 of the order made on 21st February 1990, namely that the roll of voters was to be compiled in accordance with rule 2 of the general rules. Be that as it may, Mr Justice Mervyn Davies Davies decided the application, made under the liberty to apply which he had granted on 11th May 1990, and his decision could have been appealed to this Court. This is not a case where there was no alternative remedy. The alternative remedy had already been tried and had failed, and had not been pursued further.

Next, the Courts may, on this jurisdictional issue look at the particular function which the person or body was performing, and ask whether that particular function affects the applicant's rights in a way which is peculiar to them, or to a limited class of persons, or whether it effects them as subjects or citizens.

Again, having regard to this aspect of the case, the particular function which the Imam was performing affected the applicant's rights in a way which was peculiar to a limited class of persons, namely, persons who were members of the Bury Park Mosque Community.

The final consideration was the religious nature of some of the decisions that the Imam was asked to make, especially in relation to the appellant's request that 25 female members of the community be included in the roll of voters. As Mr Justice Auld observed in his judgment, the constitution of the Mosque provided that all the basic rules and regulations would be in accordance with the Koran, and the Imam was much better placed to decide in accordance with the religious law, customs, and traditions of the Muslim faith than was the Court.

However, this aspect would not have led me to reject this appeal, had I been persuaded that the Imam was exercising a public law function. The sole source of the power of the Mosque's constitution, in the eyes of English law, is the consensual submission of the members of the Mosque community to its provisions. Likewise, the decision making authority of the Imam derived from the private law of contract, albeit by way of an order of the Chancery Court, the proceedings before the Chancery Court being based on alleged breaches of the constitution by the defendants to that action, that is to say by the existing executive committee.

If the appellants or the other plaintiffs to that action had, in February or May 1990, believed that the Imam could not and would not discharge the office which the Court had entrusted him to fulfill competently and impartially, they could have appealed. Far from doing so, his appointment with was with their agreement.

For those reasons, I have reached the conclusion that there is no public law element involved in this case, and the attempt to seek a remedy by way of judicial review is misconceived. Consequently, I would dismiss this appeal.

LORD JUSTICE BALCOMBE: I agree that this appeal should be dismissed for the reasons given by my Lord, Lord Justice Roch.

In my view, the judgment of Mr Justice Auld, on the issue of jurisdiction by way of judicial review is impeccable.

Before us, Mr Nusrat, for the appellants, sought to raise an argument based on the submission that the Imam was an arbitrator or umpire, and that the procedure turned judicial review under Section l of the Arbitration Act 1979 was applicable. Even if the Imam was an arbitrator or umpire -- as to which I express no opinion -- no consent or leave was obtained under Section 1 (3) of that Act to make the initial appeal to the High Court. The jurisdiction was not invoked by the original application for judicial review. The point was not raised before Mr Justice Auld. No leave to appeal to this Court was sought or obtained, under Section 1 (7) of the 19 71 Act, and the point was not raised in the notice of appeal.

For all these reasons, we refused to allow Mr Nusrat to take the point. I am, however, disturbed that this unhappy dispute is still unresolved. I would hope that, even at this late stage, good sense will prevail, and that the parties will be able to resolve their differences by agreement, but if this should not prove possible, then it seems to me that the remedy of the appellants may be to seek leave to appeal out of time the order of Mr Justice Mervyn Davies of 3rd October 1990. Another possible course of action may be to invoke the jurisdiction of the Court, or the Charities Commission, in relation to charities, as apparently happened in the case of another Mosque in Luton, which came before Mr Justice Ferris on 29th July 1992.

I do not wish to encourage further litigation in this unfortunate dispute, but, if such litigation cannot be avoided, so be it. What I am quite clear about is that the procedure by way of judicial review is not here appropriate.

MR NUSRAT: I do intend to make an application for leave to appeal out of time, but I am sure that good sense will prevail, and there may not be any need to appeal against that matter, but, eventually, the appellants may have to seek further leave to avoid any confrontation with the other party - - because on every Friday there is always a danger of a breach of the peace. While all these consequences may be proper, if they do not comply, one way or the other, the applicant would seek leave to appeal out of time.

LORD JUSTICE BALCOMBE: That is a matter for you and your clients, Mr Nusrat. We express no further views on the subject. This appeal will be dismissed. Mr Yajnik, do you have any application?

MR YAJNIK: My Lord, I do seek costs in relation to this appeal.

LORD JUSTICE BALCOMBE: Prima facie, you are entitled to, as a right. The appeal was brought, it has failed. Mr Nusrat, is there any reason why the appeal should not be dismissed with costs?

MR NUSRAT: Your Lordships, in fact, there was an appeal case by my learned friend some time ago that involved security for costs. I cannot resist his application.

MR YAJNIK: My Lord, would your Lordships consider direction that sums paid by the security for costs would be released towards the costs of the respondent?

LORD JUSTICE BALCOMBE: No further order is necessary Mr Yajnik, as I rather anticipated. Once we have dismissed the appeal the costs will take their own course.

MR YAJNIK: My Lords, may I say that those instructing me, my lay clients, with respect, share a sentiment that the Court had expressed, that this matter will now proceed peacefully, and further recourse to the Court will be unnecessary.

LORD JUSTICE BALCOMBE: We can only but hope so.

000OOO000