CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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SOUTHAMPTON CITY COUNCIL |
Claimant |
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- and - |
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(1) SOUTHAMPTON MEDINA MOSQUE TRUST LIMITED (2) MOHAMMED ASLAM (3) AFZAL DEADER (4) MOHAMMED ASHRAF (5) MOHAMMED ABDULLAH (6) THE ATTORNEY GENERAL |
Defendants |
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Mr Peter Smith (instructed by Johns & Saggar) for the First Defendant
Mr Mohammed Aslam for Himself and the Fifth Defendant In Person
The Third, Fourth and Sixth Defendants were not represented and did not appear
Hearing dates: From 12th-16th July, 19th-23rd July and 26th July
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Crown Copyright ©
MR JUSTICE DAVIS:
Introduction
The Proceedings
The Formation of the Southampton Medina Mosque Trust
"Approved the formation of the MEDINA MOSQUE TRUST, separate to Razvia Trust; Building agreement once reached with SCC for Land Transfer to be with Medina. Until then the two committees will work together for the good of both Trusts. Main aim is the ability to accumulate sufficient funds to show SCC our commitment"
The meeting also (as recorded in paragraph 3 of the minute) resolved on the membership of the committee for the new Medina Mosque Trust – including the election of Mr Aslam as chairman - and it was noted that it and the committee of the Razvia Trust would seek to work together for the common good. Thus it appears that from that time there were to be two committees, one specifically for the new mosque and one for the Razvia Trust: albeit the members of both committees were (at that time) mostly the same.
"MEDINA MOSQUE TRUSTEES – Confirmation of those appointed previously: Mohammad Abdullah Aziz Din Brora Tasib Khan Mohammad Aslam"
There is no extant record of the previous appointment purportedly so confirmed. A letter of 28th January 1993 from Mr Aslam to the City Council, however, had referred to there having been a recent general meeting of the Razvia Trust at which Mr Abdullah, Mr Bashir Ahmed, Mr Aziz Din Brora and Mr Tasib Khan had been appointed trustees for the new mosque project.
"The question on the replacement of Ch Bashir Ahmad (deceased) by his son Javed was raised again, as in past. It was decided that the constitution would not be altered and the matter of Trustee replacement would be considered at a later date after the document has been adopted. The selection of the fourth Trustee was not a priority issue at present and focus should be on the framework and details for the whole organisation."
The (shorter) typed minute of the meeting of 22nd May 1994 is to similar effect: it also records that meeting agreeing to the constitution without changes being required.
"3.1 Membership of the Medina Mosque shall be open to Muslims over the age of 16 years, provided they follow The Sunni Islamic Faith; and agree to abide by this constitution and its rules and regulations"
…
"7.3 Special Extra-Ordinary General Meeting (Special EGM)
This will be specifically convened by the Secretary for the replacement of Trustees This clause shall apply after the completion of the Medina Mosque and in accordance with clauses 8.3, 8.4 and 8.5
No such meeting shall be convened in the intervening construction period
A Special EGM shall be called in the same manner as an EGM"
…
"8.3 The First Four Trustees were appointed at a General Meeting from amongst the membership for the Land Title Deeds and the Building Agreement with Southampton City Council, they are:
Mohammad Abdullah
Aziz Din Brora
Bashir Ahmad (deceased)
Tasib Khan
All future additions/ substitutions will be from Medina Mosque Committee Members Appointment shall be by agreement with the Committee and the existing Trustees of Medina Mosque"
…
"8.6.7 Removal by a resolution duly passed at an Extra-ordinary General Meeting called for the purpose by a majority of not less than two-thirds of the members voting at such a meeting A Trustee cannot be forced out of office without valid cause"
…
"8.7 Resignation / Removal
8.7.1 A trustee may be removed from office by Medina Mosque in an Extra-ordinary General Meeting called for this purpose
8.7.2 A Trustee may resign his trusteeship by notice to the Committee or in writing to the Secretary provided there are at least three (3) Trustees continuing The committee will attempt to fill such vacancies with reasonable haste, in the best interest of the Medina Mosque"
…
"8.9 Special Powers of the Trustees
8.9.1 The Trustees may require the Secretary to convene meetings of the committee ; or the general membership by majority decision upon giving at least 30 days written notice
8.9.2 The Trustees shall give notice in writing to the Secretary of their intention to dismiss the whole Committee and not selected members of that committee with at least fourteen (14) days notice with reasons"
…
"12 MEDINA MOSQUE – NEW BUILDING WITH COMMUNITY CENTRE
This clause shall apply until the new building of the Medina Mosque is fully completed and officially opened and the Freehold Title Transferred to the Medina Mosque Trustee by Southampton City Council Alterations can only be made to this clause by a Special Extra-ordinary General Meeting
12.1 Trustees
12.1.1 Subject to the provisions of Clause 8.6 the first Trustees cannot be removed; however a trustee may vacate his position
12.1.2 Prior to the completion of the building, the Trustees cannot resign without replacement Trustees being appointed, such that a minimum of three are present at all times"
…
"17. DISSOLUTION
17.1 The Trust may be dissolved by a resolution passed by Three-Fourths majority of the members present in person and voting at an Extra-ordinary general meeting of which notice has been given specifying the terms of resolution to be discussed"
The Trustees of the Medina Mosque
The Building Agreement
"MOHAMMAD ABDULLAH of 32 Blenheim Avenue Highfield Southampton AZIZ DIN BRORA of Brora House Chilworth Road Southampton and MOHAMMAD ASLAM of 34 Blenheim Avenue Highfield Southampton being the present Trustees of the Southampton Medina Mosque Trust and Community Trust"
By clause 18.1 it is provided as follows:
"The Licensees shall not (except by way of mortgage) assign underlet transfer or part with their interest or possession under or the benefit of this Agreement or any part of such interest possession or benefit save by way of assignment to other Trustees for the time being of the Southampton Medina Mosque Trust and Community Trust"
I add that there has never been any such assignment. By clause 33 it was provided that if the building works were all duly completed, the sale price instalments all duly paid and all other terms of the Building Agreement complied with (other than those waived) then the City Council would convey the site by Instrument of Transfer in the form provided in clause 8.6 (which was an agreed form) in favour of the Licensees. Clause 34 is in these terms:
"Limitation of Liability
The persons named as the Licensees herein are named as such as trusteees [sic] of the Southampton Medina Mosque Trust & Community Trust and in the event of any claim being made against the Licensee [sic] hereunder their liability shall be limited to the total value of the assets at that time of the said Southampton Medina Mosque Trust and Community Trust"
Events following the Building Agreement
The Meetings of 2001
Submissions
Conclusion
Disposition