Scottish Court of Session Decisions

This is an application to the Court of Session in the exercise of its nobile officium to remove the present trustees of an institution called "Idara Taleem-Ul Quran" and to appoint new trustees. The English name of the institution is "Islamic Studies Centre". The deed of trust setting out its objects is dated 24 January 1989. I shall call it "the institution", as that is the expression used in the deed of trust. The trustees in terms thereof were and remain Abdul Hamid, Masood Ahmed and Naseer Ahmed. It is their removal which the petitioners seek, on grounds which I shall come to in due course. The principal assets held by the trustees are premises at 4, 8 and 10 Temple Park Crescent, Edinburgh. The deed of trust, which I shall quote more fully at a later stage, provides inter alia that the trust is to be set up for charitable purposes, that its main object is to "provide for the advancement of the teaching and study of Islam" and that the proper law regulating the trust deed and the charity thereby constituted should be the law of Scotland.

Scots law distinguishes between private and public trusts, and this trust is clearly a public one. The Court of Session, in the exercise of its nobile officium, has jurisdiction at common law to supervise the administration of trusts and to take such steps as may be appropriate to see that they are properly executed. This includes the removal of trustees from office. In addition, there is scope for their removal, in specified circumstances which do not exist in the present case, under Section 23 of the Trusts (Scotland) Act 1921. The Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 contains in Part I various provisions relating to charities. Section 7 empowers the Court, on the application of the Lord Advocate, inter alia to remove any person concerned in the management or control of the bodies referred to in that Section. The Lord Advocate has made no such application in respect of this trust. I am therefore concerned solely with the exercise of the common law jurisdiction to remove trustees. I shall discuss the relevant authorities nearer the end of this Opinion, but at this stage, in order to explain my approach to the factual history, I shall refer briefly to two cases. In Gilchrist's Trustees v Dick (1883) 11 R 22 Lord President Inglis said at p.24:

In MacGilchrist's Trustees v MacGilchrist 1930 S.C. 635 Lord President Clyde said at p.638, after reference to the dictum I have just quoted from Gilchrist's Trustees:

The question for me to consider is therefore whether the petitioners have succeeded in discharging the burden of proving facts sufficient to satisfy this test. Evidence was led before me at a proof, which was attended with a number of difficulties. There were repeated under-estimates of the time required in Court. As a result, I heard the evidence in three instalments over a period of many months. A further lengthy period elapsed before the hearing on evidence could take place. Several of the witnesses, although now citizens of the United Kingdom, were born in Pakistan and had not learnt to speak English as their first language. Their English, fluency in which varied of course from witness to witness, was no doubt adequate for everyday business purposes, but tended to falter when matters of religion were under discussion. I mean this in no way as a criticism of any witness, but rather as a comment on the real difficulties of communication of abstract thoughts conceived in a different language from that of the Court. I was greatly assisted by the services of an excellent interpreter, who not only provided translations when witnesses gave evidence in Urdu but also helped witnesses who gave evidence in English when they could not bring to mind the words they needed adequately to express themselves. It was at times nevertheless a struggle to follow the evidence and I had to take time to ensure that I grasped the significance of what I was being told. The need carefully to review the evidence has contributed to a further delay in the preparation of this Opinion. It has to be said that, notwithstanding the relatively succinct pleadings of the parties in the petition and answers, as adjusted and subsequently amended, the proof ranged far and wide over the minutiae of the affairs of the institution over a period of more than ten years, with digressions into the affairs of the wider Islamic community in Scotland, England and Pakistan. Bearing in mind the test which falls to be satisfied I have decided, after reviewing the evidence, to concentrate on the main issues, as they appear to me, and not to set out or discuss every single disputed point.

There appear to me to be two main issues. The first is whether, as the petitioners allege, the trustees have misapplied the trust funds. The trustee Abdul Hamid is the United Kingdom president of an organisation called Sipah-e-Sahaba and the allegation, in substance, is that the trustees have misapplied the trust funds to further the interests of this organisation. The second main issue relates to the alleged mistreatment of Imams who were employed from time to time at the institution, and in particular of Imam Hafiz Abdul Wahid who was employed from 1991 until he was dismissed by the trustees in December 1995. I shall concentrate on these issues in my discussion of the history of events, during the course of which I hope that their significance will come to be understood.

I propose at this stage to express my views about the witnesses. Evidence on behalf of the petitioners Mohammed Shariff and Syed Kirmani was led from the petitioners themselves and from Abdul Latif, Mohsan Raza, Aziz Ur Rehman, Ghulam Hassan, Masood Ahmed (one of the trustees whose removal is sought) and Javaid Iqbal, all of whom gave evidence of fact, and from Sardar Ahmed Qadri, who was called as an expert witness. Answers to the petition were lodged by the trustees Abdul Hamid and Naseer Ahmed (whom I shall refer to as "the respondents"), and evidence on their behalf was given by the respondents and by Amjid Hussain and Mullana Imdad ul Hassan Nomani, who gave evidence of fact, and by Mullana Mohammed Iqbal Qadri, who was called as an expert witness. All the witnesses, without exception, impressed me with their sincerity and desire to give truthful evidence. I think it also relevant to mention that all the witnesses, without exception, impressed me as being motivated, in giving evidence, by a desire to adhere to the teachings of Islam as they understood them. That is not to say that there were not substantial discrepancies in the evidence, but to my mind these can be explained by the fact that people of a profound religious persuasion may feel very strongly about the proper way to conduct the affairs of a religious institution and about events affecting those affairs, which may lead in all sincerity to a distorted view of matters of fact and a tendency to exaggerate their significance. I have tried to allow for this in considering the evidence, particularly that of Abdul Hamid, which I shall say more about in a moment.

All followers of the Islamic religion, that is to say, Muslims, believe that Muhammad was the Prophet and Founder of Islam and that the Quran (or Koran) was revealed to him by Allah. All Islamic teaching rests its authority on the Quran. There are, however, as is well known, major divisions among the followers of Islam. The two main branches are the Sunni and the Shia Muslims. I need not attempt to explain the points of difference between them, which are considerable. The majority of Shiites are concentrated in Iran and southern Iraq. There is a Sunni majority in many other countries, including Pakistan. Significant numbers of both Sunnis and Shiites are United Kingdom citizens. There is a degree of mutual tolerance between them, in the United Kingdom at least, but even here some Sunnis believe that Shiites are not true believers, and vice versa. A word which is used in this context is "kafir", one translation of which is "infidel". To describe as kafir someone who regards himself as a follower of Islam would be liable to cause him great offence. All the witnesses at the proof were Sunni Muslims. Among Sunnis there are different groupings who follow the teachings of various Ulama or schools of religious scholars. Two such schools are the Deobandis and the Barelwis, taking their names from Indian towns where their respective academies were founded. Deobandis and Barelwis are often contrasted with each other and there are groups of each in the United Kingdom.

It is usual for Muslims to pray five times each day. The act of prayer may be performed in any suitable place, but each Friday (Yawm al-Juma'a) Muslims gather, if at all possible, to perform congregationally the Midday Prayer in the mosque or in premises which serve the purposes of a mosque. There are no priests in Islam, nor is there any central organization. Each congregation makes its own arrangements. Prayers are led by Imams who are attached to mosques and other premises. Imams are appointed by reason of their knowledge of and ability to teach the Quran and Islam. Many have formal academic qualifications and experience, but these are not prerequisites for appointment. A mosque, in the strict sense of that word, has certain universally recognised architectural features. These are, firstly, a mihrab, which is an indented niche within the mosque indicating the direction of the prayer towards Mecca; and, secondly, a minbar, the pulpit from which the Imam preaches the Friday sermon. Other traditional architectural features, such as a dome and a minaret, may combine to make a building instantly recognisable as a mosque. The recently completed Edinburgh Central Mosque in Potterrow is such a building. Often, however, local congregations in the United Kingdom have acquired and adapted as mosques premises which were originally constructed for other purposes. In addition, premises which also continue to serve other purposes, such as Islamic schools, may be used on a regular basis for religious observance even though they are not provided with a mihrab and a minbar. The expert witness for the respondents referred to such premises as "literal" mosques. This was an expression which had not been discussed during the evidence of the petitioners' expert, but since counsel for the petitioners appeared, during the hearing on evidence, to accept the use of the expression, it is one which I shall adopt for my own use. It is usual for washing facilities to be provided at mosques and other places where prayers are said because ritual washing of certain parts of the body before praying is regarded as obligatory by Muslims.

Sipah-e-Sahaba is an organisation which was founded by Abu Rehan Zia-ur-Rehman Farooqi ("Mr Farooqi"), who has since been assassinated in Pakistan. There was some evidence that it is regarded in Pakistan as being a terrorist organisation. In the United Kingdom it is a legal organisation and is active in a number of ways, such as the holding of meetings and the raising of funds. Abdul Hamid has been involved with it for many years and since 1991 has been its United Kingdom president. A booklet by Mr Farooqi was produced which bears to be an introduction to the aims and objectives of Sipah-e-Sahaba. These include a charter of demands, among which are "Pakistan be declared as Sunni State" and "Intervention of Iranian Embassy in the internal affairs of Pakistan be stopped forthwith". Under the heading "Goals it pursues and strategy it adopts" are "to forge unity among Sunni factions" and "to prove and expose the KUFR [infidelity] of Shias and secure legislation declaring them as Kafir". It may thus reasonably be supposed that, at least in a Pakistani context, supporters of Sipah-e-Sahaba are not favourably disposed towards Shiites. It can thus be understood that Sunni Muslims who would prefer harmonious relations with Shiites in the United Kingdom regard it as a controversial organisation.

Abdul Hamid is called Hafiz, which signifies that he can recite the whole of the Quran from memory. I do not understand that he has acquired any formal qualifications in Islamic studies. From the brief history of his life which he gave in evidence, it appears that he was born in about 1952 and came to England in about 1968, starting work in a factory in Rochdale. Because of his knowledge of the Quran he was asked by some of his Islamic work-mates to give them religious instruction, and did so during tea breaks. He came to Scotland in about 1973 or 1974 and lived in various parts of Edinburgh before settling in the Polwarth district of the city in about 1982. From about 1978 he ran shops of his own, and appears to have become a moderately prosperous member of the Muslim business community in Edinburgh. I think that he can properly be described as a fervent Muslim. He has an uncompromising attitude to religious affairs and has difficulty in accepting any point of view but his own. When he was giving evidence, over an extended period, his command of English was inadequate for the task of expressing deeply held beliefs, and, partly at my insistence, much of his evidence was given in Urdu through an interpreter. I was nevertheless able to form a clear impression of him as a witness. It was easy to see how the characteristics I have mentioned could antagonise others. They certainly contributed to his making, superficially at least, a poor showing as a witness. He over-reacted to questions, not only in cross-examination, and it often took some persuasion to induce him to give direct answers to straightforward questions. Despite all this, however, I have on careful reflection come to the view that he was doing his best to tell the truth and that on the whole he is to be regarded as a reliable witness. I am reinforced in this view by two further considerations. Firstly, Abdul Hamid's evidence was supported to a large extent not only by that of the other respondent, Naseer Ahmed, who gave his evidence in a straightforward manner and appeared to me to be a convincing witness, but also by that of Amjid Hussain, who had considerable experience of Muslim affairs in Edinburgh and had been closely involved with those of the institution, and who impressed me as a first class witness. Secondly, a number of written testimonials were produced from Muslims of high standing in Scotland and elsewhere. All of these speak, in effect, to Abdul Hamid's integrity, standing in the Muslim community and services in the cause of Islam. I would particularly mention a reference given by Mufti Maqbool Ahmed, Imam and Khateeb at the Islamic Centre and the Glasgow Central Mosque in Glasgow, which certifies, on the basis of ten years' personal knowledge, that Abdul Hamid is a man of honesty and integrity who is highly regarded in the Muslim community, that his services to the cause of Islam and to the progress of that community have been greatly appreciated and that the Mufti would be happy to recommend him for any position of trust in the service of the community. I mention this reference in particular because the standing and authority of a Mufti are such that any pronouncement by him is treated with particular regard by Muslims, and he is the most senior Muslim, if that be the appropriate expression, in Scotland. His standing was recognised by the petitioners at a time when he became involved in the affairs of the institution in a way which I shall mention later.

In the period after his arrival in Edinburgh Abdul Hamid acquired a reputation as a teacher of Islam and was sought out by a number of Muslims who wanted their children to receive instruction in Islam and the Quran. As the number of his pupils grew and more space was required he decided, with the support of a number of friends, to institute the Idara Taleem-Ul Quran in what were initially rented premises at 8 Temple Park Crescent, Edinburgh. As I have said, the English name of the institution is Islamic Studies Centre. The name Idara appears to be more or less synonymous with Madrasa as signifying a place of education which is often linked to, or associated with, a mosque. Each of the premises at 4, 8 and 10 Temple Park Crescent was constructed as a shop unit on the ground floor of a traditional stone tenement constructed about a century ago. Above the shops are flats, entering by a common stair. The institution began to function on 8 October 1986, when more than 20 children attended for instruction at 8 Temple Park Crescent. They were taught by Abdul Hamid, with the assistance for a few weeks of a helper from Pilrig Mosque, situated in another district of Edinburgh. The rent of £120 a month was paid personally by Mr Hamid for the first two months. The children paid fees of £1 a week for their instruction and these fees went towards the wages of a teacher. The first teacher to be employed was Hafiz Abdul Rahman who came from Pakistan in late 1986 and was engaged to teach children from the ages of 6 to 14, with the assistance of Abdul Hamid. He was paid £40 a week. He continued to be employed until some time in 1989, as I understand it. By the end of 1987 about 50 to 60 children were being taught at 8 Temple Park Crescent. Abdul Hamid continued to pay the rent with the assistance of friends who contributed money to help pay for the financial outlays.

During 1987 a constitution was prepared for the institution. It was based on a draft provided by a friend of Abdul Hamid, Jallal Uddin Chaudhry. It was undated and unsigned. Among its ten aims and objects were the following:

The words last quoted are a reference to the Deobandi school of Sunni Muslim teaching. The constitution provided that membership would be open to all Muslim men and women, subject to payment of a membership fee and the filling in of a membership form. In practice these formalities were not complied with. The constitution also provided for there to be a management committee (Majlis-i-Shura) "if deemed necessary by the Trustees". Although the management committee was to provide management for the institution, among "special features" of the constitution were:

Curiously, in view of the importance of the trustees under the constitution, no provision was made identifying the trustees or the means by which they might come to hold office. There can however be little doubt that around that time Abdul Hamid, Masood Ahmed and Naseer Ahmed, the present trustees, came to regard themselves as trustees.

In early 1988 the opportunity arose to buy the shop premises at 10 Temple Park Crescent, next door to number 8, and they were bought at a price of £11,000. Abdul Hamid obtained a loan of £7,500 from the Bank of Scotland and the balance of the purchase price was provided by a number of substantial individual donations. Title to the property was taken in name of the three trustees of the institution in their capacity as such. The institution thus came to occupy both 8 and 10 Temple Park Crescent. During 1988 and 1989 about 60 or 65 children were being taught there. The fees remained at the same level and Abdul Hamid and his friends contributed to any shortfall. At this time there was a further opportunity to purchase the previously rented premises at 8 Temple Park Crescent at a price of £12,500. Part of the purchase price was paid out of contributions made during a conference arranged at 10 Temple Park Crescent at which Mr Farooqi spoke. Title to the subjects was taken in name of the same three trustees in their capacity as such. The disposition was dated 24 January 1989.

It seems clear that the deed of trust, which was also dated 24 January 1989 and was prepared by the same Edinburgh solicitor who was involved in the conveyance of 8 Temple Park Crescent, was granted at a time when the trustees recognised the need, as the trust property increased, to provide for it to be held on a more formal basis than was provided by the unsigned constitution. The deed of trust was adapted from one which was prepared for use at the Glasgow Central Mosque. I have already referred to some of its provisions. In it "the trust fund" was defined as meaning the premises at 8 and 10 Temple Park Crescent and all bank accounts held at Bank of Scotland, 1 Polwarth Gardens, Edinburgh (all referred to, in a curious phrase, as "the existing collection") and all monies, investments and property thereafter paid or transferred to the trustees from whatever sources and the assets from time to time representing such investments, money and property. The objects were (a) to provide for the advancement of the teaching and study of Islam and (b) to form, establish and support and to aid in the formation, establishment and support of any other charitable companies, institution, associations, trusts or societies formed for objects similar to these objects. The trustees were given wide powers, including power to purchase property, to collect money and to engage and remunerate employees.

It is agreed on record that the deed of trust is the ruling document and both counsel proceeded on this basis. I was not fully addressed on the question of the status of the constitution after the deed of trust was granted, but it appears that the trustees continued to act as if the constitution continued in force. It was not suggested to me that the provisions of the deed of trust conflicted with those of the constitution, and it therefore appears to me to be appropriate to have regard to the provisions of the constitution along with those of the deed of trust, treating the latter, however, as the ruling document in the event of any conflict between them. It will be recalled that in the constitution the second of the aims and objects was "to establish a mosque and Islamic community centre". It appears to me to be within the scope of the objects provided by the deed of trust to make provision either for the establishment of a mosque or for the use of premises to serve the purposes of a mosque.

During 1989 Syed Ghulam Mustafah Shah was engaged as Imam and Hafiz Aziz ur Rehman as his assistant. Their wages were £80 and £60 a week respectively. It became apparent that the individual premises at 8 and 10 Temple Park Crescent did not provide suitable accommodation for the increasing number of children who attended for instruction. In addition there was interest in the possibility of making the premises available for Muslims in the Polwarth district to say prayers, led by the Imam. The trustees accordingly decided to carry out alterations to create openings in the dividing wall between the premises at 8 and 10 Temple Park Crescent so that they could be used together as a meeting room. The appropriate warrants were obtained and, with professional assistance, the alterations were carried out in about February 1990. The cost of about £4,200 was paid for principally by a few substantial donations. Voluntary work was provided by a number of individuals, including the petitioner Mohammed Shariff, who helped in various ways, including the provision of wall panels. As part of the alterations, washing facilities and central heating were installed. From 23 March 1990 regular Juma'a prayers were said at the enlarged premises. I accept this as the date, rather than any earlier date, because before then the necessary facilities were not available for that purpose. The history of the conduct of prayers thereafter is imprecise, but over a period they came to be said five times every day at the times prescribed for strictly observant Muslims. The main attendance however continued to be at Juma'a prayers on Fridays.

It is convenient at this point to express my view on what was presented to me as a contentious issue, which is whether the premises are properly to be regarded as a mosque. As I have said, evidence was led from two expert witnesses, each of whom expressed scholarly opinions based on Islamic teaching from the time of the prophet Muhammad onwards. Counsel for the petitioners endeavoured to persuade me, on the basis of their expert's evidence, that the premises were the subject of a waqf, which is, roughly speaking, the Islamic equivalent of a trust for religious purposes, and that by virtue of this the premises had become a mosque. Counsel for the respondents, however, on the basis of their expert's evidence, submitted that the premises could not be regarded as a mosque because, among other reasons, they did not contain a mihrab or a minbar and they were situated vertically beneath flats occupied as dwelling houses. Counsel for the respondents accepted, however, that as explained by their expert, the premises were a literal mosque at the time that prayers were said. I do not think it appropriate to express my view about this on the basis of Islamic jurisprudence. The trust property is held for the objects provided and subject to the powers conferred on the trustees by the deed of trust. In terms of that deed the property can be put to a whole range of uses within the general scope of the objects and there is no requirement simply to use the premises as a mosque. In any event, the deed of trust enables the trustees to sell any existing property and to purchase new property. This is incompatible with the concept of a waqf, which precludes alienation of property subject to it. If I had to resolve the difference of opinion between the expert witnesses, I would therefore prefer that of the respondents' expert, to the effect that the premises become a literal mosque when prayers are said. What I think far more important is that ordinary Muslims in general regard the premises as a mosque and refer to them as such. There was ample evidence to that effect, including references in a monthly publication called The Friday Message which circulates in the Edinburgh area and in the business card of the food shop managed by Abdul Hamid which describes the shop as being "near Polwarth Mosque". Muslims treat premises which they regard as mosques with particular regard and expect a high standard of behaviour in them and in the conduct of affairs relating to them. This provides a context in which some subsequent events may be more fully understood.

During 1990 the number of children receiving instruction increased to about 80 or 90. They continued to pay fees of £1 a week each. From 1990 onwards money was raised in other ways. I have already mentioned individual donations for specific purposes. Collections of money were also made from those who attended Juma'a prayers on Fridays. In addition collections were made from shops owned by Muslims, particularly during the month of Ramadan (which varies in its dates from year to year) and at the time of the feast of Eid al-Fitr at the conclusion of that month. These were made by persons who went round the shops in pairs, usually the trustees Masood Ahmed and Naseer Ahmed, either both of them together or one of them in company with Haji Ibrahim. All receipts for donations were given in name of the institution. Notwithstanding these various sources of revenue financial difficulties were experienced during 1990 because of the expenditure in connection with the acquisition and alteration of the properties.

The employment of Hafiz Aziz Ur Rehman was terminated on about 2 August 1990. What bears to be a receipt by him for wages paid to him for the period to August 1990 was lodged as a production and I require to say something about this. He did not dispute that he had been paid the wages, but he denied signing the receipt. Abdul Hamid, however, said that he had signed the receipt. It should be said that, whoever wrote out the text of the receipt, it was not Hafiz Aziz Ur Rehman. His name is written in capital letters at the top and the foot and what may or may not be his signature appears to take the form of the letters "RE" with a flourish. The issue whether or not this was his signature led to a tortuous digression in the evidence. Abdul Hamid, who gave evidence after Hafiz Aziz Ur Rehman, asserted at one point that he had heard that Hafiz Aziz Ur Rehman had been bribed to say that it was not his signature. Thereafter evidence was called to the effect that there was indeed a rumour about this, and Hafiz Aziz Ur Rehman was recalled to contradict this rumour. While I am satisfied that Hafiz Aziz Ur Rehman was a completely honest witness and that the rumour that he had been bribed was untrue, I have concluded with some hesitation that his memory was at fault when he denied having signed (if indeed that be the right word) the receipt. I am more readily disposed to accept Abdul Hamid's account of what happened when I observe that it appears to have been his usual practice to obtain signatures on receipts, as happened when Imam Mustafah Shah was paid wages due to him in December 1990.

In December 1990 Mustafah Shah had not been paid for some time and publicly protested about this at prayers. The petitioner Mohammed Shariff appealed for funds to pay the arrears of wages and made a special collection. The employment of Mustafah Shah as Imam ended in December 1990, by which time all wages due to him had been paid. Thereafter Abdul Hamid took over the instruction of children until 1 February 1991 when a new Imam, Hafiz Abdul Wahid, was appointed. He continued to be employed as Imam until 26 December 1995 when he was dismissed by a majority of the trustees (Masood Ahmed was abroad at the time). One striking feature of the proof was that Hafiz Abdul Wahid was not called as a witness, although his name appeared on the witness lists for both parties and there was evidence that he was in Scotland at a time when he could have been called as a witness. He had a central part to play in a number of events which took place while he was Imam and I would have found evidence from his point of view as Imam to be particularly enlightening. There were, however, difficulties which he would have had to face in giving evidence. One of these was that he obtained his employment, and consequently his visa to enter the United Kingdom, in part on the faith of what purported to be a graduation certificate in his name from Al-Ashfariyah University in Lahore, Pakistan. There was undisputed evidence that this was a forgery, his name having been substituted for that of the true graduate. During his time as Imam there was criticism of his performance of his duties and Abdul Hamid wrote letters to him dated 17 May, 24 September and 9 October 1995 warning him about his conduct. After he had been dismissed he made an application to an industrial tribunal complaining of unfair dismissal. After a lengthy hearing the industrial tribunal decided on 4 February 1997 that he was unfairly dismissed but that there was "a high contribution, of the order of 100%" so that no compensation was payable. There might therefore have been difficulties in putting him forward as a witness of credit.

For some time at least Hafiz Abdul Wahid was a successful Imam. The number of worshippers who attended regularly for Juma'a prayers on Fridays increased from about 50 when he first became Imam to as many as 200 when his employment was terminated. Large numbers of children also continued to attend for instruction. My impression is that it was partly as a result of the increase in the levels of activity at the institution that some of the worshippers, not necessarily conversant with the constitution and the deed of trust, felt that Abdul Hamid should be held more accountable for his conduct of its affairs. He of course was its founder and no doubt regarded himself as foremost among the three trustees. I am satisfied, however, that regular meetings of the trustees, including Masood Ahmed, were held and that they frequently met informally after Juma'a prayers on Fridays. I am also satisfied that proper records of the financial affairs of the institution were kept. This is not to say that there were no difficulties. At times Imam Hafiz Abdul Wahid experienced a delay in the payment of his wages; and there was a problem about the hire of a hall for a meeting which led to the raising of a Sheriff Court action against the trustees for the unpaid charges. But I am satisfied that the petitioners have not succeeded in establishing any financial irregularity. Following demands made in particular by Mohammed Shariff handwritten accounts for the period from 8 October 1986 to 27 November 1990 were displayed on the walls of the institution in May 1993. These accounts were not prepared with professional assistance and they were criticised in some detail at the proof, but they appear to me to be clear enough and to present a fair and accurate picture of the financial affairs of the institution during the period in question. Accounts for the same period and for subsequent years were professionally prepared by a firm of accountants called Nabi-McMullan, with offices in Glasgow and Edinburgh. No-one from that firm was called as a witness and I am not sure when the accounts themselves were prepared, but they were all signed as approved by the trustees Abdul Hamid and Naseer Ahmed and by Haji Ibrahim by the time that they came to be lodged as productions. I am satisfied that they give a fair and accurate picture of the financial affairs of the institution during the period covered by each set of accounts. There appears to me to be no evidence whatever to support the averments that the trustees misapplied funds.

The principal complaint is that funds were misapplied to benefit Sipah-e-Sahaba. There is no foundation for this. At one time Mr Farooqi was invited by Abdul Hamid to speak again at the institution. About 100 people attended the conference. At the end of it a collection was made expressly for the Sipah-e-Sahaba Welfare Trust, which assists poor people in Pakistan. Those present were well aware of the purpose for which the collection was made. In 1994 more property was acquired. The shop premises at 4 Temple Park Crescent were bought for a price of £14,000. The disposition was dated 13 September and 30 October 1994 and was granted in favour of the same three trustees in their capacity as such. It narrated that the sellers had agreed to sell the subjects to Abdul Hamid and that he had represented to the purchasers that in making the purchase he was truly acting on behalf of himself and the other trustees as trustees. I am satisfied that the decision to purchase involved all the trustees, including Masood Ahmed, as well as Haji Ibrahim and Hafiz Abdul Wahid. There was a rumour that 4 Temple Park Crescent was to be used as offices as Sipah-e-Sahaba, but there was no truth in this. These new premises were and continued to be occupied by the institution for its own purposes.

Before I leave the question of the alleged misapplication of funds, I should mention that there is an averment that Abdul Hamid "has applied funds for his personal benefit". There is no foundation for this averment, which is entirely unspecific, and no attempt was made to lead evidence in support of it. Whatever view may be taken of his character, it cannot be said that his involvement with the institution has been for personal gain.

It is appropriate at this stage to mention another incident concerning Sipah-e-Sahaba. There was a substantial body of evidence that sometime in 1995 a number of leaflets appeared in the premises of the institution. These included membership application forms giving details of the address and telephone number of the institution and of the bank account in name of the trustees with the Bank of Scotland. The content of the leaflets was inflammatory and included a picture of a Kalashnikov rifle and the words "Shia Kafir" three times over. Imam Hafiz Abdul Wahid complained that he had received threatening and abusive telephone calls from Shia Muslims about these leaflets. None of them was lodged as a production, but I accept that such leaflets were found on the premises. I do not accept, however, that Abdul Hamid or any other trustee had anything to do with them. It seems to me to be more likely than not that they were forgeries, made as part of a crude attempt by Abdul Hamid's enemies to discredit him. I do not wish it to be inferred from this that I suspect the petitioners of any involvement. The origin of the leaflets must remain a mystery.

Although the constitution provided for there to be a management committee "if deemed necessary by the trustees", a management committee only existed for a relatively short time. It was set up in about 1990 for the particular purpose of sponsoring Imam Hafiz Abdul Wahid's visa application and it appears not to have met after 1992. Mohammed Shariff was its vice-chairman. With hindsight, it would have been better had the management committee continued in existence because much of the friction that later ensued could have been avoided. From time to time there were heated disputes. At one time in particular, in about August 1995, there was a quarrel between Abdul Hamid and the Imam after Friday prayers during which the Imam called Abdul Hamid "munafiq", which means roughly that he was a hypocrite. Abdul Hamid used a figure of speech which amounted to calling the Imam a "bastard". Although these were hard words, it appears that the quarrel was patched up a few days later. Relations between Abdul Hamid and the Imam did however deteriorate thereafter. I have already referred to Abdul Hamid's warning letters. At a meeting held at the premises of the institution on 1 October 1995, attended by a number of concerned individuals, the view was expressed that the management of the institution had deteriorated and those present formed an interim committee "to restore order and peace". Haji Ibrahim became president and Mohammed Shariff became vice-president. The Imam was not present, having gone to Pakistan for a time, and on his return he was dismissed. This brought matters to a head and the worshippers who had attended regularly for prayers in Temple Park Crescent split into two groups. A smaller group of no more than about 20 worshippers, including the petitioners and Masood Ahmed, started to say prayers at premises at 37 Polwarth Crescent, led by Hafiz Abdul Wahid. The remaining regular worshippers continued to say prayers at the premises of the institution. At the date of the proof about 100 people regularly prayed there on Fridays, and by the date of the hearing on evidence I was informed that this number had increased to about 120 to 130. The number of children attending for instruction remained steady and at the date of the hearing on evidence was about 63. It cannot therefore be said that the split has seriously affected the strength of the institution.

Some time after the Imam had been dismissed a petition was circulated protesting at the dismissal and expressing dissatisfaction with the management of the institution. This petition attracted a large number of signatures. It was gone through in some detail in evidence. It appeared that many people who had signed the petition had no real connection with the institution and moreover many of them had little understanding of what they were being asked to sign. I am not disposed to attach much weight to this petition. Insofar as numbers are significant, I attach greater weight to the numbers I have mentioned in the preceding paragraph.

The present petition was presented in December 1995. As I have said, it is unfortunate that the procedure since then has been so protracted. There is one matter which occurred after the petition had been presented which it is appropriate that I should mention. The parties attempted to resolve the dispute by involving Mufti Maqbool Ahmed of Glasgow Central Mosque as mediator. The Mufti gave a written decision, which both parties signed, but the next day the petitioners decided not to be bound by it. This event demonstrates a willingness on the part of the respondents at least to approach the dispute in a spirit of compromise.

I turn now to various questions of law. The respondents dispute the title and interest of the petitioners to make this application. The evidence established that the petitioner Mohammed Shariff had a substantial connection with the institution from 1987 onwards. His children attended for instruction there, he contributed to the alterations carried out in 1990, he made other financial contributions on a regular basis and he was vice-chairman of the management committee which existed from 1990 to 1992. The petitioner Syed Kirmani had a less substantial connection but was a regular attender for prayers from about 1994 onwards and made regular financial contributions. During the hearing on evidence I was referred to two authorities in particular on the question of title and interest to raise proceedings. In Ross v Governors of Heriot's Hospital (1843) 5D 589 an action of declarator was brought by a boy who claimed that he was eligible to be admitted into Heriot's Hospital as falling into the category of persons eligible for admission in terms of the founder's will. Lord Cuninghame said at p.609:

This dictum is not affected by the fact that the decision of the Inner House was reversed by the House of Lords, on other grounds, in a decision reported at (1846) 5 Bell's App. 37. In D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7 Lord Dunedin said at pp.12 to 13:

These dicta appear to me to be broad enough to cover situations such as the present. Counsel for the petitioners did not seek to argue that all Muslims in Edinburgh, or those who were no more than infrequent worshippers at the institution, would have the necessary title and interest: he confined his submission to those who could establish some substantial connection. I agree with this approach. It is a question of degree in each case whether any individual can establish a substantial connection, but it appears to me that those who regularly worship and make financial contributions have that connection. The petitioners aver that they are beneficiaries of the trust, and counsel for the petitioners advanced an argument in support of it, but I agree with criticisms directed at this by counsel for the respondents. The relationship is not one between trustees and beneficiaries, such as one would find in a private trust, but between trustees of a public trust for the furtherance of Islam and members of the Islamic community who have participated in the affairs of the institution to an extent sufficient to qualify them to take steps to ensure the discharge by the trustees of their duties. I shall therefore repel the first plea-in-law for the respondents, which relates to the petitioners' title to sue.

I turn now to the grounds upon which trustees may be removed. I have referred at the beginning of this Opinion to dicta about the concept of malversation. There are very few authorities apart from the cases of Gilchrist's Trustees and MacGilchrist's Trustees, from which those dicta are taken. Gilchrist's Trustees related to an antenuptial contract of marriage. A trustee had invested the trust funds in business, and had kept no sederunt book or trust accounts, but had acted in good faith, and with the result of producing a benefit to the trust estate. Notwithstanding the illegal conduct of the trustee, the Court refused a petition for his removal and the appointment of a judicial factor. Lord President Inglis said that there had been no malversation of office.

In Hope v Hope (1884) 12 R. 27 the petitioner, James Hope W.S., petitioned for the removal of himself and the respondent, John Hope W.S., from the office of trustees of a family trust created by their uncle Dr Thomas Hope under his trust disposition and settlement. The Court dismissed the petition, on the ground that the mere fact that trustees could not act harmoniously would not justify their removal and the appointment of a judicial factor. Lord President Inglis said at page 30:

The next case was Orr Ewing's Trustees v Orr Ewing (1885) 13R. (H.L.) 1. This related to a trust constituted by a trust disposition and settlement. There was a dispute between the trustees and four of the residuary legatees. A question arose as to the jurisdiction of the Scottish Courts, for reasons which are not of relevance for present purposes. The House of Lords held that the Court of Session did have jurisdiction and also affirmed its decision to sequestrate the trust estate and appoint a judicial factor. Lord Blackburn at p.23 derived from the decision of the Privy Council in Letterstedt v Broers (1884) 9 App. Cas. 371 the test that the Court should apply, that is to say that

The fact that the trustees did not "get on very comfortably together" was insufficient ground for removal of a trustee.

The last, and most recent, case to which I was referred was MacGilchrist's Trustees. In that case three out of four trustees petitioned for the removal of a fourth on the ground that he had continuously neglected the business of the trust, had persistently failed or delayed to reply to letters and to return documents sent to him for signature, with resulting loss to the trust estate, and had, while absent from the country, failed to inform the petitioners of his address. These averments were not denied or explained by the respondent. It was held that they disclosed a complete and persistent disregard by the respondent of his duty as a trustee and that this conduct constituted a sufficient ground for his removal from office. I have already quoted the relevant dictum from the Opinion of Lord President Clyde.

It is noteworthy that, not only is it rare for the Court to grant an application for removal of trustees, all these cases concerned private trusts. I was referred to no case where the removal of the trustee of a public trust was sought. Counsel proceeded on the basis that the ground for removal was the same, whether the trust was private or public. Although I have some reservations about it, I shall proceed on this basis, since I was not invited to do otherwise. The question then is whether the petitioners have established conduct, on the part of Abdul Hamid in particular, which amounts to malversation of office. I am satisfied that the facts established at proof fall far short of satisfying this test. The history of disagreements, even quarrels, does not appear to me to avail the petitioners. As I have said, there is no evidence that the trust funds have been misapplied. Abdul Hamid's connection with Sipah-e-Sahaba is no doubt controversial, but it has existed for many years and those who worship regularly at the institution or send their children for instruction there have been aware of it throughout. They have also been aware of his personal characteristics. The association, through Abdul Hamid, of the institution with Sipah-e-Sahaba, appears to me to be within the objects of the trust and therefore to be a matter of policy within the discretion of the trustees. Those who do not like this connection, or are otherwise unhappy with Abdul Hamid's conduct of the affairs of the institution, have the remedy of joining the petitioners' group or of going elsewhere. This is particularly so now that the Edinburgh Central Mosque is functioning. The dismissal of Imam Hafiz Abdul Wahid may also have been controversial, but it was decided upon by a majority of the trustees and was not without justification, particularly the presentation by him of a forged graduation certificate. Those who wished to continue to be led by him in prayer elsewhere were able to do so. The numbers of those who continue to attend for prayers and for instruction at the premises of the institution appear to me to be an indication that Abdul Hamid's conduct of its affairs meets with the satisfaction of all but a relatively small minority. I do not see how any of this could be characterised as malversation of office.

I have concentrated on the position of Abdul Hamid because he is clearly foremost among the trustees. The petition only seeks removal of Naseer Ahmed as trustee because he supports Abdul Hamid and is thus liable to have his actions scrutinised in the same way. For the same reasons, they appear to me to survive scrutiny. Masood Ahmed is in a curious position. I have already referred to respects in which he participated in the decisions of the trustees. This seems to have come to an end in 1995, as much through his ceasing to attempt to participate in the decisions as through his being deliberately excluded from participation. The petition seeks his removal from office and when he was called as a witness for the petitioners he appeared to accept that this was appropriate. As I understood their submissions, both counsel invited me to remove him from office. I do not think it appropriate that I should do so. A stigma attaches to removal from office and Masood Ahmed has done nothing to deserve such a stigma. Moreover, the grounds for removal from office have not been established and a mere invitation by both parties does not appear to me to afford justification for the exercise of this jurisdiction. If Masood Ahmed believes that he should no longer be a trustee, then he can simply resign. No doubt, before doing so, he will consider carefully whether he may have something still to contribute to the trustees' discharge of their duties. I shall therefore simply refuse the prayer of the petition.

One final point I should mention is that no criticism was directed against any of the proposed new trustees, and had I been minded to grant the prayer of the petition I would have appointed them as trustees.

On the whole matter therefore I shall pronounce an interlocutor sustaining the first plea-in-law for the petitioners and repelling the first plea-in-law for the respondents (which relate to the question of title to sue) and quoad ultra sustaining the pleas-in-law for the respondents, repelling the pleas-in-law for the petitioners, and refusing the prayer of the petition.