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Mohammed Imtiaz and others against Arif Saddiq and others (Sheriff Court Civil) [2025] SCFAL 25 (15 April 2025)
URL: http://www.bailii.org/scot/cases/ScotSC/2025/2025scfal25.html
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[2025] SCFAL 25
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SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT FALKIRK
[2025] SC FAL 25
FAL-A159-24
JUDGMENT OF SHERIFF S G COLLINS KC
in the cause
MOHAMMED IMTIAZ, MOHAMMED SAFDAR AND LIAQUAT ALI
Pursuers
against
ARIF SADDIQ, MASHOOD UL HAQ, MUHAMMAD JAWWAD, NADEEM RABBANI,
NAEEM RASHID, SHRAZ ABDUL KHALIQ, TAHIR ZAHEER KHAN, TAIMUR SHAKIR,
WASEEM ANWAR, AND MUHAMMED HAJA
Defenders
Pursuers: Sanders, Advocate; Sandemans
Defenders: McGeough; Harper McLeod
FALKIRK, 15 April 2025
The sheriff, having resumed consideration of the cause, dismisses the action; reserves all
questions of expenses meantime.
Introduction
[1]
In this action the pursuers seek declarator that meetings of the Falkirk Muslim
Association (otherwise known as the Falkirk Islamic Centre, and hereinafter "the
Association"), held on 17 September 2023 and 1 October 2023, were not held in accordance
with the provisions of the constitution of the Association, and that accordingly any
purported decisions made at these meetings are ultra vires, void and of no effect. The
pursuers also seek interdict against the defenders from continuing to operate and manage
the Association in accordance with the said purported decisions.
2
[2]
The defenders tabled a plea of no jurisdiction, accompanied by a rule 22 Note, and
also lodged a motion for summary decree. The pursuers tabled a plea to the relevancy of the
defences, and also lodged a rule 22 Note. A hearing was fixed to determine these
preliminary pleas and to consider the defender's motion. When the case called, however,
and after discussion, parties' agents were content that the defenders' motion for summary
dismissal could fall for want of insistence, and that the real issue to be resolved centred on
the defenders' first plea in law. Accordingly I heard debate on this plea. The defenders'
position was that it should be sustained, and the action dismissed. The pursuers' position
was that it should be repelled and the action appointed to a proof before answer, all
remaining pleas still standing.
Background
[3]
The Association is a voluntary association, governed by a Constitution, and is a
registered charity. Three different copies of the Constitution have been lodged, but there
was no dispute that the relevant copy for present purposes was that lodged as the first
production for the pursuers, revised and amended by the Association in 2002.
[4]
In terms of clause 4 of the Constitution, membership of the Association is open to all
Muslims over the age of 18 years who live in Falkirk District, Linlithgow and Kincardine,
who have signed a membership form and paid a prescribed subscription. In terms of
clauses 5 and 6, the General Council of the Association comprises all subscribed members.
The General Council elects a President. The President selects six other members, one of
whom is appointed as Secretary. Collectively these seven members comprise the Executive
Committee. In terms of clause 5.5 the Secretary, with the approval of the Executive
3
Committee, can call an "emergency general meeting" of the membership, on 7 days' notice.
What constitutes an "emergency" is not defined.
[5]
In terms of clause 7, the General Council elects nine Trustees, being members of the
General Council, who through a trust hold title to all real property and funds acquired by or
held by the Association. Clause 7.9 provides that the Trustees "must participate in the
interest" of the Association, and "attend at least four meetings per year", and that
"neglecting these duties shall be reported to the General Council for expulsion from the trust
board." Clause 7.7 provides that "it shall be in the power of the general election (sic.) to
expel any trustee in the event of such a trustee's conduct when decision shall be made by
majority."
[6]
As at the start of September 2023 the pursuers were all Trustees of the Association. A
meeting of the membership was called to take place on 17 September 2023. At this meeting a
vote of no confidence was passed in the pursuers as Trustees. A further meeting of the
membership took place on 1 October 2023. On this occasion a vote was passed to expel the
pursuers as Trustees and to appoint the defenders as Trustees instead.
[7]
The pursuers aver that the said meetings were not competently convened in terms of
the Constitution, and that in any event they had no power to vote to expel the pursuers as
Trustees. In particular, the pursuers aver that the notice calling the meetings ran in the
name of the "Masjid committee" and the "representatives of the General Council", but that
there are no such bodies in terms of the Constitution. Further, there was no "emergency"
and so no basis for calling the meetings. Accordingly the meetings were not validly called.
In any event there was no quorum, according to the available voting list. Nor was notice
given that a motion was to be made to remove the pursuers as Trustees, which was a breach
of natural justice. A Trustee could only be expelled in the two circumstances specified in
4
clause 7.9, neither of which was present. Accordingly the decisions to expel the pursuers as
Trustees and appoint the defenders instead were invalid.
[8]
The defenders aver that the meetings were validly called, and that the decisions to
expel the pursuers and appoint the defenders were validly made. Masjid is another word
for mosque: the reference to the "Masjid committee" in the notice of meeting was a
reference to the Executive Committee. The meetings were quorate. They were emergency
meetings in terms of clause 5.5. There was no lack of fair notice, as the agenda for the
meeting of 17 September 2023 was posted on the notice board at the Association's premises.
Grounds for expulsion of a Trustee under rule 7.7 were not confined to the two specific
circumstances mentioned in clause 7.9 but could include the Trustees' conduct more
generally. The vote of no confidence in the pursuers was valid, as was the vote to expel
them and appoint the defenders in their place.
Submissions
[9]
The defenders' agent submitted that the pursuers were seeking to regulate the
administrative powers of the Association under its Constitution. But the power to do so lay
exclusively with the supervisory jurisdiction of the Court of Session. The decisions
challenged by the pursuers were made (i) by the Association, (ii) under powers delegated by
the Constitution, and (iii) for the benefit of the members. The decisions were paramount
examples of the "tripartite" relationship which invoked the supervisory jurisdiction: West v
Secretary of State for Scotland 1992 SC 385. Exercise of the supervisory jurisdiction was not
confined to persons or bodies exercising powers under public law. It also applied to the
exercise of tripartite powers under the constitutions of unincorporated associations:
Crocket v Tantallon Golf Club 2005 SLT 663; Wiles v Bothwell Castle Golf Club 2005 SLT 785.
5
Any challenge to the decisions complained of in the present case could only be brought by
way of application for judicial review in the Court of Session. The sheriff court had no
jurisdiction to entertain the action and it should be dismissed.
[10]
In a brief reply counsel for the pursuers referred to section 38 of the Courts Reform
(Scotland) Act 2014. He submitted, in substance, that this provision had given to the sheriff
court powers which it had not had previously, and in particular the powers to grant
declarator and reduction. This meant that the sheriff court did have jurisdiction to entertain
the present action. This was not a public law action akin to Brown v Hamilton District
Council 1983 SC (HL) 1, where it was clear that the Court of Session had exclusive
jurisdiction. There were reported examples of the sheriff court regulating the affairs of
voluntary associations carried out under their constitutions: Bell v The Trustees 1975 SLT
(Sh Ct) 60; Abbot v Forrest Hills Trossachs Golf Club 2000 SLT (Sh Ct) 155. The present action
was competently brought in the sheriff court and should go to proof before answer.
Analysis and decision
[11]
In McDonald v Secretary of State for Scotland (No 2) 1996 SC 113 the pursuer raised
proceedings in the sheriff court seeking declarator, interdict and damages in respect of
personal searches carried out on him in prison and which he claimed were unlawful. When
the case reached the Inner House Lord Clyde (at page 116H) said that:
"The single question in this appeal is whether the case is within the
jurisdiction of the sheriff court. If it is an ordinary action for reparation it
may properly proceed within the sheriff court. If it involves the
supervisory jurisdiction of the Court of Session then the action must be
dismissed. The question can be framed in terms either of jurisdiction or of
competency and the defender raises it in his first two pleas in law
respectively in each of these formulations.... However it is formulated the
question falls to be answered essentially by identifying the issue which is
raised in the case. The form of action and the remedies sought may be of
6
assistance towards solving the problem but the final answer is to be found
in a proper understanding of what the action is truly about..."
On examination, the court was satisfied that what the case was "truly about" was the
validity or otherwise of standing orders issued by the Secretary of State, and which
authorised the searches to which the pursuer had been subjected by prison officers. The
action was therefore an attempt to invoke the supervisory jurisdiction, a jurisdiction
exclusive to the Court of Session. It was incompetently brought as an ordinary action in the
sheriff court, and so had to be dismissed.
[12]
The starting point, in deciding whether a particular dispute truly amounts an
application to the supervisory jurisdiction, remains the decision in West. In what are now
familiar passages the court set out (1992 SC 385 at 412) certain propositions which were
intended "to define the principles by reference to which the competency of all applications
to the supervisory jurisdiction" were to be determined. It rejected the proposition that the
scope of the supervisory jurisdiction depended in any way upon a distinction between
public law and private law. Rather:
"The cases in which the exercise of the supervisory jurisdiction is
appropriate involve a tri-partite relationship, between the person or body to
whom the jurisdiction, power or authority has been delegated or entrusted,
the person or body by whom it has been delegated or entrusted and the
person or persons in respect of or for whose benefit that jurisdiction, power
or authority is to be exercised."
The facts were that the petitioner, a serving prison officer, had been refused
reimbursement of relocation expenses following a transfer. But this was effectively
a bi-partite contractual dispute about his conditions of employment. There was no
tri-partite relationship whereby the petitioner had been subject to an exercise of
power, authority or jurisdiction conferred on a third party (pages 413 - 414).
Accordingly the action was incompetent, and was dismissed.
7
[13]
West was explained and applied in Crockett, where the petitioner challenged his
expulsion from a golf club. The club was an unincorporated association, governed by a set
of rules, agreed as a condition of membership. These rules provided for election of a
council, which had the power to refer a complaint about a member to a meeting of the whole
membership. The rules also provided that at such a meeting the member concerned could
be expelled by a qualified majority vote of those members present and voting. By this
process the petitioner was duly expelled, and he challenged the decision by way of judicial
review. The respondent conceded that the club's council had exercised a jurisdiction as
described in West when it referred the complaint regarding the petitioner to a general
meeting, but submitted that the membership at the meeting had not done so when it voted
for expulsion. This latter decision was therefore not amenable to judicial review, and so the
action should be dismissed.
[14]
Lord Reed, then sitting in the Outer House, held that the respondent's submission
proceeded upon a misunderstanding of the effect of the rules of the club, and an overly
inflexible application of what had been said in West. In general terms:
"[37] ...the essence of the supervisory jurisdiction is that it is the means by
which, under the common law, the court ensures that bodies which possess
legally circumscribed powers to take decisions or actions, affecting the rights
or interests of other persons, exercise their powers in accordance with the
limitations and requirements to which they are subject. Those limitations
and requirements may be set by legislation, or by contract, or by some other
instrument, or by the common law. They may concern such matters as the
extent of the powers themselves, the purposes for which they can be
exercised, the factors which the body in question requires to take into
account, and the procedures which the body must follow. Since the court's
function is confined to ensuring that the powers are exercised in accordance
with the limitations and requirements to which they are subject, it follows
that its jurisdiction is of a restricted nature, which is aptly described as
supervisory. It cannot interfere with an act or decision taken by the body in
question within the limits of its powers, since to do so would be
incompatible with the existence of those powers, but can only review the
decision to ensure that it is intra vires."
8
The earlier quoted dicta in West was not to be applied in "an excessively literal fashion, as if
[it] contained a statutory definition". Although the concept of a tripartite relationship, was
"valuable as a paradigm" of the situation in which a body exercises a limited power or
authority, it was not to be applied inflexibly (paragraph 40).
[15]
Accordingly the distinction which the respondent in Crockett sought to draw between
the amenability to judicial review of the council and the general meeting was not well
founded:
"[41] ...The club council are a group of members of the club, whom the
members as a whole have agreed inter se are to have authority to take certain
decisions affecting a member whose conduct is in issue. A qualified majority
of those present and voting at a general meeting are equally a group of
members of the club, whom the members as a whole have agreed inter se are
to have authority to take a decision affecting such a member. Each of these
situations appears to me to be capable of being characterised as involving a
tripartite relationship. More significantly, perhaps, each of them involves
the exercise of a limited power, to take a decision affecting the rights or
interests of the member in question, by a body on whom that power has been
conferred; each of them results in the taking of a decision with which the
court cannot interfere, provided the power is exercised lawfully within the
limits by which it is circumscribed; and each of them results in the taking of
a decision which is ex facie binding upon the members, unless set aside by
the court. In these circumstances, it appears to me that each of these
situations falls equally within the ambit of the court's supervisory
jurisdiction."
The challenge to the competency of the proceedings was therefore rejected.
[16]
Lord Reed's reasoning in Crockett was agreed with and applied by Lord Glennie in
Wiles, which again concerned a challenge to a decision of a golf club to expel a member. His
Lordship expressed the view that it was now "clearly established that proceedings in court
by a [golf club] member to vindicate his rights are, in Scotland, properly to be taken by way
of judicial review" (at paragraph 21). Reference was also made to Lady Smith's decision in
Irvine v Royal Burgess Golfing Society of Edinburgh 2004 SCLR 386, in which no objection was
9
taken to the petitioner challenging his suspension from membership by way of judicial
review.
[17]
The pursuers in the present case, on the other hand, sought to rely on the decisions of
the sheriffs principal in Bell and Abbott. In Bell a longstanding member of a dissenting
church sought interdict of its trustees for debarring him for entering the hall in a manner
averred to be contrary to natural justice. The sheriff principal refused to grant interdict, but
on the grounds that the court could only interfere with the decisions of controlling bodies of
voluntary associations if the member had shown injury to some patrimonial interest or civil
right. There was no suggestion that the action was incompetently brought in the sheriff
court. In Abbot, members of an unincorporated association for persons holding timeshares
in lodges raised proceedings against the association and management company alleging
unlawful interference with peaceful enjoyment of their property rights. Again, the sheriff
principal accepted that a court could interfere with the actings of an unincorporated
association where its actings affect the patrimonial interests or civil rights of its members,
and allowed a proof before answer.
[18]
The first difficulty with these authorities is that they both pre-date Crockett. Indeed
Bell predates West as well. The second difficulty is that, with all respect to the sheriffs
principal, greater weight must be given to the opinion of Lord Reed insofar as there can be
said to be any difference between them. The third difficulty is that no argument was made
in either Bell or Abbott that the actions were incompetent because they involved an
application to the supervisory jurisdiction. That is not necessarily surprising. It does not
follow that every action against an unincorporated association must be brought by judicial
review. The question will always be, as explained above, whether what a given action is
truly about is a challenge to a decision or act of a body with legally limited powers which
10
affects the pursuer's rights or interests, and where the court's jurisdiction is limited to
supervising the exercise of that power to ensure that it has been exercised intra vires of the
limitations placed on it. That is the question in the present case also, and the answer to it
depends not just on the legal characterisation of the defenders, but on the nature of the
complaint averred against them.
[19]
Nor does section 38 of the 2014 Act assist the present pursuers. This section
provides, insofar as material:
"38 Jurisdiction and competence of sheriffs
(1)
A sheriff continues to have the jurisdiction and competence that
attached to the office of sheriff in relation to civil proceedings
immediately before this section comes into force.
(2)
Without limiting that generality, a sheriff has competence as respects
proceedings for or in relation to--
(a)
declarator,
...
(g)
reduction, other than reduction of a decree of any court..."
As is said in MacPhail, Sheriff Court Practice, (4th Edition), at paragraph 2.66, although certain
statutes expressly confer jurisdiction upon the sheriff to determine specific questions arising
from the manner of the exercise of particular powers by statutory bodies, there is no process
whereby the sheriff may review and quash any decisions of other courts or bodies without
express statutory power to do so. Accordingly:
"The fact that the sheriff now has power in relation to actions of declarator or
reduction [as a result of section 38(2) of the 2014 Act] is procedural only; it
does not confer upon the sheriff court any new substantive jurisdiction of
judicial review, falling within the exclusive preserve of the Court of Session."
Put another way, section 38(2) deals with remedies, not jurisdiction. That brings the matter
back to Lord Clyde's dicta in McDonald (No 2), quoted above. The remedies sought in an
action may assist in identifying whether it truly involves an application to the supervisory
jurisdiction of the Court of Session, but they are not determinative. If what the present
11
action is truly about is an application to the supervisory jurisdiction, as that must be
understood and analysed in the light of West and Crockett, then section 38 of the 2014 Act
does not make such an action competent in the sheriff court.
[20]
In the light of all this, it is clear that the action must be dismissed. The Association is
an unincorporated association. The members of the association have agreed a Constitution.
This Constitution, like the rules of the club in Crockett, provides for the election of an
executive committee, and for the calling by the secretary of this committee of a general
meeting of members to consider expulsion of the Trustees. Again as in Crockett, and for
essentially the same reasons, both the executive committee and the members voting in
general meeting have been given limited powers by the membership in this regard. There
can be seen to be a tri-partite relationship per the analysis in West: (i) the membership have
agreed to confer powers (ii) on the executive (to call a meeting) and on the voting members
(to expel) (iii) a trustee or trustees. The essence of the pursuers' complaints - what this case
is truly about - is a claim that the committee and the general meeting have acted ultra vires of
their powers under the Constitution in this regard in relation to their expulsion. The
remedies sought by them are with a view to confining these powers within the limits of the
Constitution. The jurisdiction being invoked in this action is therefore the supervisory
jurisdiction, which is exclusive to the Court of Session. I will therefore sustain the
defender's first plea in law and dismiss the action.
Expenses
[21]
The defenders' agent moved that the question of expenses be reserved in the event of
success. I will therefore do so. The appropriate motion can be enrolled in due course.