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Cite as: [2007] ScotSC 70

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SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

A1042/07

JUDGEMENT

SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC

in the cause

HAIDER McKENNA AND OTHERS

Pursuers and Appellants

against

MOHAMMED RAFIQUE AND OTHERS

Defenders and Respondents

Act: Miss Gibson, solicitor, Paull & Williamsons, Aberdeen

Alt: Miss Swarbrick, solicitor, Anderson Strathern, Edinburgh

Aberdeen: 15^th January 2008

The sheriff principal, having resumed consideration of the cause,

(1) allows the appeal and recalls those parts of the interlocutor of the sheriff dated 1 June 2007 which read respectively "Refuses to grant the interim orders sought in craves 4(i), (ii), (iii) and (iv) in hoc statu" and "meantime reserves the question of expenses relating to the hearing on 29 May 2007";

(2) grants warrant of new to cite the third defender by serving upon him a copy of the writ as amended and warrant on a period of notice of twenty one days and ordains him, if he intends to defend the action or make any claim, to lodge a notice of intention to defend with the sheriff clerk at the Sheriff Clerk's Office, Castle Street, Aberdeen within the period of notice after such service;

(3) interdicts ad interim the first defenders and the second and third defenders, both as representatives of the first defenders and as individuals from:-

(i) intromitting in any manner or way whatsoever, either directly or indirectly, with the property and assets that were vested in Charity No. SC028038 or its appointed representatives as at 20th May 2007 and, in particular but without prejudice to the foregoing generality, intromitting in any manner or way with the following bank accounts:-

(a) Bank of Scotland Account No. 00103268

(b) Bank of Scotland Account No. 00103276;

(ii) taking any steps of whatsoever nature, either on their own behalf or through any representative, directly or indirectly, to intromit with, or transfer the title of, or otherwise burden the title of the various properties comprising the subjects 164, 166, 168 and 170 Spital, all as more particularly described in Title Nos. ABN14501, ABN15594, ABN75449 and Sasine Register Search Sheet No. 39008 for the County of Aberdeen;

(4) interdicts ad interim the first defenders and the second, third and fourth defenders, both as representatives of the first defenders and as individuals from holding themselves out as entitled to use the name the Aberdeen Mosque and Islamic Centre or to represent Charity No. SC028038 in any manner of way whatsoever;

(5) quoad ultra appoints parties to be heard on all questions of expenses at Aberdeen Sheriff Court on 30^th January 2008 at 9.30 am under reference to the ensuing note.

Note

Introduction

[1] For some years members of the Muslim community in Aberdeen have arranged and held congregational prayers and other Islamic religious activities at a mosque situated in the Spital, Aberdeen. On 6 August 2000 a number of these persons met together and approved a new constitution under the following narrative:-

We, the Muslims of Aberdeen have agreed to, and have adopted, the present constitution and do hereby establish an organisation to be known as and hereinafter referred to as the Aberdeen Mosque and Islamic Centre.

[2] This constitution contains sixteen separate articles, the majority of which are further subdivided into a number of sections. I shall examine these in more detail shortly. For present purposes it is necessary to notice article IV which provides for the establishment of a Board of Trustees who have various responsibilities including holding in trust the property of the Mosque and Islamic Centre (which I shall refer to hereafter as "the Mosque Charity"). I dare say that there are other issues in the background but, from a legal point of view, the essential question in this case is who are the persons who are now entitled in terms of the constitution to control this property. In a nutshell, the pursuers say that they, or at least four of them along with the fourth defender, are while the defenders (or at least all of them apart from the third defender who has not entered an appearance as he has not yet been cited) say that they are.

[3] The answer to this question depends upon the significance in light of the constitution of certain events which took place during the first half of 2007. Before rehearsing these events, it will be convenient to set out the relevant parts of the constitution.

The constitution of the Mosque Charity

[4] Article I provides, inter alia, as follows:

1. The Aberdeen Mosque and Islamic Centre is a charitable, non-profitable, non-political organisation.

2. Aims and Purposes

The purpose of the Aberdeen Mosque and Islamic Centre is to serve the best interests of Islam and of the Muslims of Aberdeen and the Aberdeenshire area. Towards this end, the Aberdeen Mosque and Islamic Centre shall:

1. Arrange and hold congregational prayers and Islamic religious activities at appropriate times;

2. Promote unity and joint action among the Muslims;

3. Conduct social, cultural, and religious activities in the best traditions of Islam

3. The Aberdeen Mosque and Islamic Centre can co-operate with and support any Islamic organisation that shares the same aims and purposes.

[5] Article III deals with membership. It provides, inter alia, as follows:

1. The membership of the Aberdeen Mosque and Islamic Centre shall consist of "members" of the Muslim Community of Aberdeen and the Aberdeenshire area.

3. All members must abide by the terms of this constitution.

[6] Article IV deals with the Board of Trustees. It provides, inter alia, as follows:

1. The Board of Trustees shall consist of five members of the Aberdeen Mosque and Islamic Centre and two patrons who could be from outside Aberdeen. The Executive Committee as explained in Section 3 of this Article, shall nominate all of these members. None of the five Board members shall be a member of the Executive Committee or an auditor during the tenure of their office.

3. The Executive Committee shall nominate all members of the Board of Trustees and the nomination shall be approved by the General Meeting. In case the General Meeting does not approve a member nominated for the Board of Trustees by the Executive Committee, the latter shall nominate a second person.

8. The Board of Trustees shall be responsible for the following:

1 - Finding ways and means of externally raising funds for the Mosque and Islamic Centre.

2 - The general management, maintenance, and growth of the Mosque and Islamic Centre already established.

3 - Co-signing withdrawals of funds in accordance with Article VI; Section 7

4 - Overseeing the general activities of the Mosque and Islamic Centre and ensuring that they are within the framework of the constitution.

5 - Holding in trust the property of the Mosque and Islamic Centre.

10a. Members of the Board of Trustees serve voluntarily. Inactive members of the Board may be asked to resign by the Executive Committee, with the consent of the rest of the Board of Trustees.

10b. In case the inactive member refuses to resign, the Executive Committee may decide to dismiss if 3 out of the 5 trustees and 5 out of the 7 Executive Committee members agree to it.

10c. If a Trust Member resigns, dies, leaves the jurisdiction of the Aberdeen Mosque and Islamic Centre or is dismissed, the Executive Committee shall nominate another member in the following General Meeting as per section 3 of this article.

[7] Article V deals with the Executive Committee. It provides, inter alia, as follows:

1. The Aberdeen Mosque and Islamic Centre's Executive Committee shall consist of the selected officers as stated in Section 2, of this article.

2. The selected officers shall be President, Vice-President, General Secretary, Treasurer and three other members.

3. The term of the Mosque Executive Committee shall be one year.

5. If more than half of the Executive Committee resigns/vacate their positions, new members will be chosen by a General Meeting which will be called by the rest of the Executive Committee or the Board of Trustees. The newly formed Executive Committee shall carry out the duties until the end of the term.

8. The President shall be responsible for the following:

1. The general management of all the activities of the Aberdeen Mosque and Islamic Centre;

2. Directing and co-ordinating all the activities so as to achieve the purposes of the Aberdeen Mosque and Islamic Centre;

3. Calling and presiding over meetings of the Executive Committee and General Meetings.

The remainder of this article goes on to describe in some detail the further duties of the President and also the respective duties of the Vice-President, General Secretary, Treasurer and the remaining three members of the Executive Committee.

[8] Article VI of the constitution deals with finances and the maintenance of various bank accounts and provides in section 4 (not section 7 as indicated in article IV.8-3) that all cheque withdrawals shall be co-signed by any two of the President, Vice-President and Treasurer and by the Chairperson of the Board of Trustees.

[9] Article IX deals with general meetings. It provides, inter alia, as follows:

1a. Annual General Meeting (AGM)

The Aberdeen Mosque and Islamic Centre shall have its AGM on the last Sunday in January each year. A public announcement after Friday together with a written notice of the meeting shall be made at least two weeks prior to the date of the meeting.

1b. In this meeting the Executive Committee shall present an ANNUAL financial and progress report of all its activities.

2. General Meeting:

The Aberdeen Mosque and Islamic Centre shall have at least one General Meeting during the year excluding the Annual General Meeting (AGM). A public announcement after Friday together with a written notice of the meeting shall be made at least two weeks prior to the date of the meeting.

3a. Extraordinary General Meeting

An Extraordinary General Meeting may be called by the Board of Trustees, the Executive Committee or by a petition signed by 50 members. Such a meeting shall be held within four weeks of the written petition is presented to the President of the Executive Committee (sic).

3b. The President of the Executive Committee or any other person designated by the Committee will chair the Extraordinary General Meeting.

4. An affirmative vote by 2/3 of the members present shall be necessary for the adoption of any decision(s).

[10] Article X deals with amendments to the constitution. It provides, inter alia, as follows:

1. A proposal for amendment(s) to the constitution shall be signed by at least 50 members. The proposal shall be submitted to the President or the General Secretary who shall post the proposal on the notice board and call a General Meeting within two months of the receipt of the proposed amendments(s).

2. An affirmative vote by 2/3 of the members present shall be necessary for the adoption of any amendment(s).

3. The quorum requirement for voting on amendments shall be 50 members of the Aberdeen Mosque and Islamic Centre.

[11] Article XII deals with the selection of the Executive Committee. It provides, inter alia, as follows:

1. On the last Sunday in January of each year the Executive Committee shall present and chair the Annual General Meeting.

2. A Selection Committee who has been nominated by the Executive Committee, after consultation with the Board of Trustees, shall conduct the selection.

7. The Selection Committee will nominate a minimum of seven members to form the Executive Committee.

9. The Selection Committee shall nominate all members of the Executive Committee, and the General Meeting shall approve the nomination. In case the General Meeting does not approve a member nominated by the Selection Committee, the latter shall nominate a second person.

10. The newly selected Executive Committee shall assume the charge of the Aberdeen Mosque and Islamic Centre from the last Sunday of February following the Annual General Meeting. In the period of overlap, the new Executive Committee shall work as observer under the old Executive Committee.

[12] Article XVI deals with the dissolution of the Aberdeen Mosque and Islamic Centre. It provides:

If a situation arises which makes the dissolution of the Aberdeen Mosque and Islamic Centre inevitable, the Board of Trustees shall handle the process of dissolution. Any assets, which are left after meeting all liabilities, shall be transferred to Islamic Relief in Birmingham or any other trusted charity organisation that the Board of Trustees decides.

The events of March to May 2007

[13] The Mosque Charity has been registered in the Scottish Charity Register as an unincorporated association and given the number SC028038. For some reason that is not readily apparent it has been registered under the name "Islamic Association of Aberdeen and North East of Scotland". But it is not in dispute that this is one and the same organisation as the organisation hitherto known as the Aberdeen Mosque and Islamic Centre and that its constitution is that to which I have already referred. Nor is it in dispute that this organisation has certain assets comprising four heritable properties in the Spital, Aberdeen and funds in two separate accounts with the Bank of Scotland.

[14] The pursuers (being the first three persons named as such in the initial writ and the two further persons substituted therein by amendment in terms of the interlocutor dated 28 September 2007) claim that they, or at least four of them and the fourth defender, are the duly appointed members of the Board of Trustees of the Mosque Charity. This is denied by those defenders who have so far entered an appearance in the action. In future I shall refer to them collectively as "the present defenders".

[15] The second, third and fourth defenders have been convened in the action as private individuals. The first defenders are the second and third defenders and Dr Ruhul Amin who have been convened together as trustees and representatives of a second charitable organisation which has been registered as a trust in the Scottish Charity Register with the number SC038010. Somewhat confusingly it has been registered with the name "The Aberdeen Mosque and Islamic Centre", but it appears from a letter dated 29 August 2007 to the pursuers' agents that the Office of the Scottish Charity Regulator ("OSCR") intends to issue a direction that this trust (to which I shall refer hereafter as "the Islamic Charity") should change its name.

[16] Notwithstanding the terms of article IX.1a of the Mosque Charity's constitution, it is not in dispute that in the year 2006 the Annual General Meeting of the Mosque Charity was not held until 26 March 2006. Seven persons were then appointed to serve as members of the Executive Committee. These persons are named in schedule 2 appended to the initial writ. The pursuers maintain that these persons remained in office as members of the Executive Committee at least until 24 March 2007. The present defenders, on the other hand, maintain that the period of office of these persons ended on 24 February 2007 (which was the day before the last Sunday in that month) with the result that all actions by them thereafter were ultra vires.

[17] As at 1 January 2007 the members of the Board of Trustees of the Mosque Charity were the second, third and fourth defenders, Dr Ruhul Amin and Dr Assem Al-Hajj. On 5 March 2007 the latter signed a letter addressed to the Executive Committee in terms of which, in short, he submitted his resignation as a member of the Board of Trustees of the Mosque Charity with immediate effect. On 22 March 2007 Dr Ruhul Amin signed a letter in terms of which he too resigned as a member of the Board of Trustees with immediate effect. On the same date the second and third defenders signed a hand-written notice in terms of which they announced their respective resignations as members of the Board of Trustees.

[18] Dr Ruhul Amin's letter and the notice by the second and third defenders may or may not have been prompted by an earlier notice dated 8 March 2007 which had apparently been issued by the members of the Executive Committee appointed at the meeting on 26 March 2006. For present purposes the relevant part of this notice read as follows:

The Executive Committee, by reason of loss of confidence in the present Board of Trustees, withdraws its nomination and support of the various individuals currently comprising the Board of Trustees and proposes to put a Resolution that each be requested to resign and, failing resignation, each be removed from office, at the Extraordinary General Meeting of the members to be held at Linksfield Academy, Aberdeen on Saturday the 24th March 2007 at 16:00 pm. If the members by Resolution at that Extraordinary General Meeting support and give effect to that action the Executive Committee will nominate 5 members in place of those Trustees resigning/removed from office and if there is competition for any vacancy the Executive Committee will express a preference for appointment for the members to consider and vote on.

[19] The Extraordinary General Meeting to which this notice referred duly took place on 24 March 2007. According to the minutes of the meeting, it was chaired by the President of the Executive Committee of the Mosque Charity. In short, he explained that the meeting had been called to express a vote of no confidence in the existing Board of Trustees. Since these persons had already submitted their resignations it was then proposed that five new trustees should be appointed in place of those who had resigned and that the newly elected Board of Trustees and the existing Executive Committee should thereafter work together to amend the constitution so that in the future there should be a single extended governing body to run the affairs of the Mosque Charity in place of the Board of Trustees and the Executive Committee. It was indicated that the amended constitution would then be submitted for approval at a subsequent Annual General Meeting when a further four members would be selected and approved for appointment to the proposed new governing body in addition to the five new trustees. According to the minutes it was then proposed that the five persons now named as the pursuers in the initial writ as amended should be elected as members of the Board of Trustees. It appears that there were 183 people present and entitled to vote at the meeting and that, after various contributions from the floor, 153 persons voted in support of (a) the appointment of the proposed new trustees, (b) the necessary authority being given to the new Board of Trustees and the existing Executive Committee to work together to amend the constitution, and (c) the deferment until the next Annual General Meeting of the selection and appointment of the four additional members of the proposed new governing body. 20 persons voted against these proposals and there were 10 abstentions.

[20] As already indicated, the present defenders maintain that the period of office of the Executive Committee appointed on 26 March 2006 ended on 24 February 2007. It follows from this, according to the present defenders, that all actions by the Executive Committee thereafter were ultra vires including in particular the issue of the notice dated 8 March 2007 and the convening and conduct of the purported Extraordinary General Meeting held on 24 March 2007. According to the present defenders, with effect from 25 February 2007 the management and control of the Mosque Charity was in the hands of its then Board of Trustees who remain in office as trustees, the purported appointment as trustees of the pursuers at the meeting on 24 March 2007 having been invalid.

[21] On 20 April 2007 the second, third and fourth defenders and Dr Ruhul Amin (but not Dr Assem Al-Hajj) signed a notice withdrawing their respective resignations as trustees of the Mosque Charity. The notice is addressed to the President of the Executive Committee and to the Muslim Community of Aberdeen. It is not altogether clear why the fourth defender saw fit to sign this notice given that it appears that he had not previously signed a letter or notice of resignation as a trustee.

[22] On 4May 2007 Dr Ruhul Amin and the fourth defender instructed the agents who now represent them and the second defender to write to the pursuers' agents to the effect that the new Board of Trustees had no locus to represent the interests of the Mosque Charity. A notice dated 11 May 2007 was subsequently distributed to the membership of the Mosque Charity purporting to convene an Extraordinary General Meeting to be held on 20 May 2007. It gave no indication at all of the business to be transacted at the meeting. According to the pursuers, this notice was not issued on their instructions or with their authority.

[23] The meeting convened for 20 May 2007 duly proceeded and it appears that the members attending voted by a majority to dissolve the Mosque Charity and to transfer its assets to the Islamic Charity. The present defenders' agents have called upon the pursuers to deliver up the assets of the Mosque Charity accordingly.

The raising of the present action

[24] It is in these circumstances that the pursuers aver in article 8 of the condescendence that they are reasonably apprehensive that the first defenders as representatives of the Islamic Charity and the second, third and fourth defenders as individuals would take steps to implement the purported resolution passed on 20 May 2007 and to transfer the assets of the Mosque Charity to the Islamic Charity. The pursuers aver in particular that the second, third and fourth defenders may, if not otherwise interdicted, execute appropriate documentation to bring about the transfer of the heritable properties in the Spital to the Islamic Charity and further that these defenders may seek to intromit with the bank accounts of the Mosque Charity. It is also said that the pursuers are reasonably apprehensive that the defenders will continue to hold themselves out as entitled to utilise the name, the Aberdeen Mosque and Islamic Centre, being the name generally used by the Mosque Charity. It is averred that the pursuers' agents wrote to the defenders on 30 April 2007 seeking delivery of all papers so that the Board of Trustees elected on 24March 2007 could begin their work, that no papers had been delivered and that indeed the response of the defenders was to call the purported Extraordinary General Meeting which was held on 20 May 2007.

[25] The pursuers now crave the court in terms of craves 1, 2 and 3 respectively to find and declare that the purported resolution passed at the meeting on 20 May 2007 to dissolve the Mosque Charity is of no force and effect, that the pursuers are the correctly constituted Board of Trustees of the Mosque Charity, that the persons elected at the meeting on 26 March 2006 are the present Executive Committee of the Mosque Charity and that the defenders have no power, authority or authorisation to instruct on behalf of, hold themselves out as representing or intromit with the assets of the Mosque Charity. In terms of crave 4 the pursuers seek to have the defenders interdicted from (i) intromitting with the property and assets of the Mosque Charity, including in particular the two bank accounts, (ii) taking any steps to intromit with, transfer the title of, or otherwise burden the various heritable properties in the Spital held in trust for the Mosque Charity, (iii) holding themselves out as entitled to use the name "The Aberdeen Mosque and Islamic Centre", and (iv) holding themselves out as entitled to represent the Mosque Charity in any manner of way whatsoever.

The sheriff's decision

[26] At the outset of the action the pursuers also sought interim interdict against the defenders. Caveats having been lodged on behalf of Dr Ruhul Amin and the fourth defender, a hearing duly took place before the sheriff on 29 May 2007. Having heard submissions from the agents for the pursuers and for the present defenders respectively, the sheriff made avizandum. On 1 June 2007 he pronounced an interlocutor in terms of which he refused in hoc statu to grant interim interdict against the defenders in terms of crave 4. It is this interlocutor which is the subject of the present appeal.

[27] The sheriff appended to his interlocutor a note in which he explained why he had refused to grant interim interdict. In short, he appears to have reached the conclusion that, quite apart from the Islamic Charity, there were two separate and distinct organisations, namely (1) the registered charity no. SC028038, the trustees of which were the pursuers, and (2) a voluntary unincorporated association constituted under the name "The Aberdeen Mosque and Islamic Centre" which the sheriff referred to as "the Association" and the constitution of which was the document to which I have referred earlier. It appears that the sheriff would have been prepared to grant interim interdict in the terms sought by the pursuers had he been satisfied that they were the trustees of the Association (as he called it) rather than the registered charity no. SC028038. Subject to one minor refinement to which I need not refer now, it is not in dispute that the Association and the registered charity no. SC028038 were, and are, one and the same and the discussion before the sheriff proceeded on the basis that this was so. The possibility that there might be a distinction between the two organisations was not a matter which was addressed before the sheriff, nor was it one that he raised himself at the hearing on 29 May 2007. The sheriff made this plain in the penultimate paragraph of his note where he wrote, "I am grateful to both agents for their well presented submissions and I mean them no disrespect if I have not rehearsed them in any great detail. However, I have found it necessary to dispose of the matter on grounds not really touched upon in the submissions".

[28] When the action was raised two of the five persons named as pursuers in the instance of the initial writ were not among those who had ostensibly been elected as trustees at the meeting on 24 March 2007. This error has since been corrected by the amendment which was allowed on 28 September 2007. I can understand why the sheriff may have been puzzled by this error. At the same time I think that he ought not to have proceeded to decide the issue upon a ground not argued before him without giving the parties an opportunity to address him on this ground. This is all the more true given that it is accepted that he reached the wrong conclusion on this ground. In the circumstances it was agreed at the hearing of the appeal that, the sheriff having misdirected himself in this way, the question whether or not interim interdict should be granted in the terms sought by the pursuers was at large on appeal.

The validity of the written resignations by the existing trustees.

[29] At the hearing of the appeal two issues in particular were debated. The first of these was whether there had been valid resignations by the five trustees who were admittedly in office until at least the beginning of March 2007. For the pursuers Miss Gibson submitted in short that all five trustees had validly resigned as trustees of the Mosque Charity, and that all except the fourth defender had resigned also as trustees holding the four heritable properties on behalf of the Mosque Charity. She accepted that in the latter capacity the position of these trustees was subject to the general law of trusts, and specifically the provisions of the Trusts (Scotland) Act 1921, since these heritable properties were subject to a quasi-public trust - see Anderson's Trustees v Scott 1914 SC 942 - and that the fourth defender could not be held to have resigned in this context since, although he had resigned as a matter of fact, he had not done so in writing. For the present defenders Miss Swarbrick maintained that any supposed distinction between the manner in which the trustees might resign as trustees as the Mosque Charity and the manner in which they might resign as trustees holding the four heritable properties was an artificial one not supported by authority. She emphasised that there was only one Board of Trustees of the Mosque Charity, and she submitted that the manner in which they might resign both as trustees of the Mosque Charity and as property-holding trustees was governed by the provisions of the 1921 Act as read with the constitution of the Mosque Charity. Her position in short was that the resignations which had admittedly been signed by Dr Ruhul Amin, the second and third defenders and Dr Assem Al-Hajj were of no effect and that all five trustees in office at the beginning of March 2007 remained in office on the date of the Extraordinary General Meeting held on 24 March 2007 with the result that there were then no vacancies on the Board of Trustees which could lawfully be filled by the pursuers. It followed, so it was said, that they had no title or interest to pursue the present action.

[30] As is observed in Barker & Others: Charity Law in Scotland at paragraphs 3.2.9 and 3.3.31, the application of the general law of trusts to an organisation such as the Mosque Charity which owns property subject to a quasi-public trust is not wholly clear. But I am prepared with Miss Swarbrick to assume in the present case that no distinction is to be drawn between the manner in which the trustees of the Mosque Charity might resign from the Board of Trustees and the manner in which they might resign as trustees holding the four heritable properties which are admittedly subject to a quasi-public trust. In other words, I accept for present purposes that the provisions of the general law of trusts apply just as much to the manner in which the trustees may resign as trustees of the Mosque Charity as to the manner in which they may resign as property-holding trustees.

[31] It was submitted by Miss Swarbrick, as I understood her, that section 10c of article IV fell to be read subject to sections 10a and 10b with the result, so it appeared, that the only circumstances in which a trustee might resign were if he were asked to resign by the Executive Committee with the consent of the rest of the Board of Trustees (see section 10a) or if the Executive Committee decided to dismiss him, three out of the five trustees and five out of the seven members of the Executive Committee having agreed to this (see section 10b). It was pointed out that it had not been averred by the pursuers in the present case that either of these circumstances applied so that the purported resignations relied on by the pursuers were of no effect.

[32] In my opinion this submission is unsound. The reference in section 10c of article IV to a trustee resigning is unqualified so that a trustee may in my view resign in any circumstance (subject always to the general law of trusts), and not merely if he has been asked to resign or dismissed under sections 10a or 10b respectively. Indeed, it seems to me that this is no more and no less than what would be expected in any event. It is not difficult to conceive of a wide variety of circumstances in which a trustee might choose to resign and it would be strange indeed if, having accepted office as a trustee, he was thereafter thirled to the office until his death, departure from the jurisdiction of the Aberdeen Mosque and Islamic Centre or dismissal or until his inactivity as a trustee had prompted a request under section 10a that he should resign.

[33] Miss Swarbrick drew attention to section 3(a) of the 1921 Act which provides that, unless the contrary be expressed, all trusts shall be held to include power to any trustee to resign the office of trustee. She drew attention too to a passage in Wilson & Duncan: Trusts, Trustees and Executors (2nd edn) at paragraph 22-16 where it is said: "It has however been suggested, on the analogy of certain dicta affecting other statutory powers of trustees, that an express power of resignation conferred in qualified terms in a trust originating after the introduction of the statutory power of resignation might be regarded as equivalent to an express exclusion of that power". Miss Swarbrick submitted that the power of resignation contained in section 10c of article IV was qualified by the terms of sections 10a and 10b with the result that the power of a trustee under section 3(a) of the 1921 Act to resign had been excluded.

[34] In my opinion this submission too is unsound. As I have just indicated, I do not consider that the power of a trustee to resign under section 10c is qualified by the terms of sections 10a and 10b, and it follows that a trustee of the Mosque Charity has the same power under section 3(a) of the 1921 Act to resign as any other trustee whose power to resign is unqualified by the terms of his appointment.

[35] Miss Swarbrick then drew attention to the terms of section 19 of the 1921 Act which provides:

(1) Subject to the provisions of subsection (2) of this section, any trustee entitled to resign his office may do so by minute of the trust entered in the sederunt book of the trust and signed in such sederunt book by such trustee and by the other trustee or trustees acting at the time, or he may do so by signing a minute of resignation in the form of Schedule A to this Act annexed or to the like effect, and may register the same in the books of council and session, and in such case he shall be bound to intimate the same to his co-trustee or trustees, and the resignation shall be held to take effect from and after the date of the receipt of such intimation, or the last date thereof if more than one, and in case after inquiry the residence of any trustee to whom intimation should be given under this provision cannot be found, such intimation shall be sent by post in a registered letter addressed to the Keeper of the Register of Edictal Citations.

(2) A sole trustee desiring to resign his office may apply to the court stating such desire and praying for the appointment of new trustees or of a judicial factor to administer the trust, and the court, after intimation to the beneficiaries under the trust, or such of them as the court may direct, may thereafter appoint either a judicial factor or new trustees, and if the court appoint new trustees the court may grant warrant to complete title as provided in the section of this Act relating to appointment of new trustees by the court.

Miss Swarbrick submitted that the only two methods by which a trustee might resign were those set out in section 19(1). She pointed out, correctly, that the pursuers had not averred that either of these methods had been adopted by the defenders in this case and it followed once again, so it was said, that the resignations signed by them were of no effect so that they remained trustees as at the date of the Extraordinary General Meeting on 24 March 2007.

[36] Miss Gibson pointed out that section 19(1) merely provided two methods by which a trustee may resign. She referred too to the use of the words "to the like effect" later on in the subsection. She might also have referred to the opening words of section 20 which read: "Where a trustee entitled to resign his office shall have resigned in either of the modes provided by the immediately preceding section or otherwise ...." The emphasis is mine, and in my opinion it is perfectly clear that, so long as a resignation is in writing (the necessity for which was conceded by Miss Gibson), it may be valid and effectual notwithstanding that it does not meet precisely the terms of section 19(1) of the 1921 Act - see Wilson & Duncan at paragraph 22-31.

[37] Plainly a letter of resignation by a trustee is not of itself sufficient to relieve him of his responsibilities as a trustee. So, if one of a number of trustees signs such a letter and promptly puts it away in a drawer without drawing it to the attention of his fellow trustees, the letter will be of no effect as a letter of resignation. To have such effect it must be drawn to the attention of the other trustees. There may be various means by which this may be done, and one sees in section 19(1) two such means. But the important point here in my opinion is that the written resignation by one trustee should as a matter of fact be drawn by one means or another to the attention of his co-trustees and, provided this is done, it will be as valid and effectual as if either of the two methods prescribed in section 19(1) had been followed - and subject always of course to section 19(2).

[38] It was accepted by Miss Gibson that there had been no written resignation by the fourth defender with the result that he at least remained a trustee in right of the four heritable properties. It is true too that there are no averments to vouch the proposition that any of the letters of resignation signed by the other four trustees was intimated in point of fact to any other trustee apart from its author or authors, as the case may be. Indeed in the fourth defender's answer 2 there is an express denial that any letters of resignation had been intimated to him. But Miss Gibson explained that the pursuers would be in a position to prove as a matter of fact that each of the five trustees in office at the beginning of March 2007 was aware before the Extraordinary General Meeting on 24 March 2007 of the resignations of his co-trustees. That this was so certainly appears to be consistent with the statement in the notice signed by all four defenders dated 20 April 2007 in which they speak of having decided "at that time", that is before the Extraordinary General Meeting on 24 March 2007, to submit their resignations. It is also consistent with the reference on page 1 of the minutes of this meeting to Imam Ibrahim having "informed the community about his role as a mediator in the meeting of the ex BOT and the MEC in which the ex BOT resigned". In these circumstances, and bearing in mind that the issue at this stage in the proceedings is whether or not interim interdict should be granted against the defenders, I am persuaded that enough has been said by the pursuers to support their contention on a prima facie basis that the letters or notices of resignation signed by the second and third defenders, Dr Ruhul Amin and Dr Assem Al-Hajj were valid and effectual with the result that there were indeed four vacancies on the Board of Trustees by the time of the meeting which was held on 24 March 2007.