Omar v Darul-Iman (WA) Inc [No 2]
[2013] WASC 330
•3 SEPTEMBER 2013
OMAR -v- DARUL-IMAN (WA) INC [No 2] [2013] WASC 330
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 330 | |
| Case No: | CIV:1081/2012 | 27 & 28 AUGUST 2013 | |
| Coram: | PRITCHARD J | 3/09/13 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Findings made as to identity of members and office bearers of Darul-Iman | ||
| B | |||
| PDF Version |
| Parties: | ABDUL SULAIMAN BIN OMAR DARUL-IMAN (WA) INC IMTIAZ AHMED FAYYAZ AHMAD RAJA MAIMUNAH SAIRI SHERIAFAH S AZAH ALJUNIED SITI ARIFF BABY CANCERINA MIRANTHY AZIZ KHAN SYED ALJUNIED KAMALRULZAMAN Z OMAR AHSAN AHMED ANIS ANTON ALEXANDER RIZWAN ANIS OMER ADBELLA CHEWAI TANEER CHAUDRY ABDUL KHALIQ WAJAHAT ARIF CHAUDRHY MUDDASSAR MEHMOOD KHAMZAH ARIP FAISAL MUHAMMAD SHAUKAT HAYAT MAHMOOD AHMAD MUHAMMAD RASHID MEHMOOD ABBASALI ZUBERALI NAIM SAID AHMAD REDZWAN HASSAN MOHAMED SALEEM BIN MOHAMED SHARIF ABDULLAH AHMAD SAAID FAZIDIN AMIR AZIM AHMAD RAJAH MAQSOOD AHMED PERVEZ IQBAL CHEEMA HERMAN AIDIL BOLDEN MOHD AMIRUL SAAID ISMAIL DARDAH MUHAMMAD ALI FAYYAZ OMAR RAISUL AS-SALAM SYAH REGISTRAR OF TITLES |
Catchwords: | Associated incorporation under the Associations Incorporation Act 1987 (WA) Identification of lawfully admitted members of association Lawful authority to direct affairs of association |
Legislation: | Nil |
Case References: | Omar v Darul-Iman (WA) Inc [2013] WASC 311 Raja v Darul-Iman (No 2) [2011] WASCA 251 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : OMAR -v- DARUL-IMAN (WA) INC [No 2] [2013] WASC 330 CORAM : PRITCHARD J HEARD : 27 & 28 AUGUST 2013 DELIVERED : 3 SEPTEMBER 2013 FILE NO/S : CIV 1081 of 2012 BETWEEN : ABDUL SULAIMAN BIN OMAR
- Plaintiff
AND
DARUL-IMAN (WA) INC
First Defendant
IMTIAZ AHMED
Second Defendant
FAYYAZ AHMAD RAJA
Third Defendant
MAIMUNAH SAIRI
Fourth Defendant
SHERIAFAH S AZAH ALJUNIED
Fifth Defendant
SITI ARIFF
Sixth Defendant
BABY CANCERINA MIRANTHY
Seventh Defendant
AZIZ KHAN
Eighth Defendant
SYED ALJUNIED
Ninth Defendant
KAMALRULZAMAN Z OMAR
Tenth Defendant
AHSAN AHMED ANIS
Eleventh Defendant
ANTON ALEXANDER
Twelfth Defendant
RIZWAN ANIS
Thirteenth Defendant
OMER ADBELLA CHEWAI
Fourteenth Defendant
TANEER CHAUDRY
Fifteenth Defendant
ABDUL KHALIQ
Sixteenth Defendant
WAJAHAT ARIF
Seventeenth Defendant
CHAUDRHY MUDDASSAR MEHMOOD
Eighteenth Defendant
KHAMZAH ARIP
Nineteenth Defendant
FAISAL MUHAMMAD
Twentieth Defendant
SHAUKAT HAYAT
Twenty-first Defendant
MAHMOOD AHMAD
Twenty-second Defendant
MUHAMMAD RASHID MEHMOOD
Twenty-third Defendant
ABBASALI ZUBERALI
Twenty-fourth Defendant
NAIM SAID
Twenty-fifth Defendant
AHMAD REDZWAN HASSAN
Twenty-sixth Defendant
MOHAMED SALEEM BIN MOHAMED SHARIF
Twenty-seventh Defendant
ABDULLAH AHMAD SAAID
Twenty-eighth Defendant
FAZIDIN AMIR
Twenty-ninth Defendant
AZIM AHMAD RAJAH
Thirtieth Defendant
MAQSOOD AHMED
Thirty-first Defendant
PERVEZ IQBAL CHEEMA
Thirty-second Defendant
HERMAN AIDIL BOLDEN
Thirty-third Defendant
MOHD AMIRUL SAAID
Thirty-fourth Defendant
ISMAIL DARDAH
Thirty-fifth Defendant
MUHAMMAD ALI FAYYAZ
Thirty-sixth Defendant
OMAR RAISUL AS-SALAM SYAH
Thirty-seventh Defendant
REGISTRAR OF TITLES
Thirty-eighth Defendant
Catchwords:
Associated incorporation under the Associations Incorporation Act 1987 (WA) - Identification of lawfully admitted members of association - Lawful authority to direct affairs of association
Legislation:
Nil
Result:
Findings made as to identity of members and office bearers of Darul-Iman
Category: B
Representation:
Counsel:
Plaintiff : Mr S K Shepherd & Mr R G S Harrison
First Defendant : No appearance
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Fourteenth Defendant : No appearance
Fifteenth Defendant : No appearance
Sixteenth Defendant : No appearance
Seventeenth Defendant : No appearance
Eighteenth Defendant : No appearance
Nineteenth Defendant : No appearance
Twentieth Defendant : No appearance
Twenty-first Defendant : No appearance
Twenty-second Defendant : No appearance
Twenty-third Defendant : No appearance
Twenty-fourth Defendant : No appearance
Twenty-fifth Defendant : No appearance
Twenty-sixth Defendant : No appearance
Twenty-seventh Defendant : No appearance
Twenty-eighth Defendant : No appearance
Twenty-ninth Defendant : No appearance
Thirtieth Defendant : No appearance
Thirty-first Defendant : No appearance
Thirty-second Defendant : No appearance
Thirty-third Defendant : No appearance
Thirty-fourth Defendant : No appearance
Thirty-fifth Defendant : No appearance
Thirty-sixth Defendant : No appearance
Thirty-seventh Defendant : No appearance
Thirty-eighth Defendant : No appearance
Solicitors:
Plaintiff : Tottle Partners
First Defendant : No appearance
Second Defendant : In person
Third Defendant : In person
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Sixth Defendant : No appearance
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : No appearance
Tenth Defendant : No appearance
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendant : No appearance
Fourteenth Defendant : No appearance
Fifteenth Defendant : No appearance
Sixteenth Defendant : No appearance
Seventeenth Defendant : No appearance
Eighteenth Defendant : No appearance
Nineteenth Defendant : No appearance
Twentieth Defendant : No appearance
Twenty-first Defendant : No appearance
Twenty-second Defendant : No appearance
Twenty-third Defendant : No appearance
Twenty-fourth Defendant : No appearance
Twenty-fifth Defendant : No appearance
Twenty-sixth Defendant : No appearance
Twenty-seventh Defendant : No appearance
Twenty-eighth Defendant : No appearance
Twenty-ninth Defendant : No appearance
Thirtieth Defendant : No appearance
Thirty-first Defendant : No appearance
Thirty-second Defendant : No appearance
Thirty-third Defendant : No appearance
Thirty-fourth Defendant : No appearance
Thirty-fifth Defendant : No appearance
Thirty-sixth Defendant : No appearance
Thirty-seventh Defendant : No appearance
Thirty-eighth Defendant : No appearance
Case(s) referred to in judgment(s):
Omar v Darul-Iman (WA) Inc [2013] WASC 311
Raja v Darul-Iman (No 2) [2011] WASCA 251
Table of Contents
2. The parties to the action and the participants in the trial 11
(a) The parties to the action 11
(b) The participation of the second and third defendants in the litigation 12
(c) The evidence adduced by the plaintiff at trial 13
3. Who are the members of Darul Iman? 14
(a) The categories of membership of Darul Iman 15
(b) The requirements for membership of Darul Iman 15
(c) Membership contributions 16
(d) The evidence in relation to the members of Darul Iman 18
(i) Abdul Sulaiman Bin Omar 18
(ii) Abbasali Zuberali 20
(iii) Naim Said 21
(iv) Ahmad Redzwan Hassan 22
(v) Mohamed Saleem Bin Mohamed Shariff 23
(vi) Abdullah Ahmad Saaid 24
(vii) Azim Ahmad Rajah 25
(viii) Maqsood Ahmad 26
(ix) Pervez Ibval Cheema 27
(x) Herman Aidil Bolden 28
(xi) Mohammad Amirul Saaid 28
(xii) Ismail Dardah 29
(xiii) Muhammad Ali Fayyaz 30
(xiv) Omar Raisul As Salam Syah 30
(e) Evidence in relation to other persons 31
4. Who are the members of the Council of Darul-Iman? 32
(a) President 33
(b) Deputy President 33
(c) Treasurer 33
(d) Councillor 34
(e) Councillor 34
(f) Executive Officer 34
5. The declarations which should be made 35
- PRITCHARD J:
Introduction
1 Darul-Iman (WA) Incorporated (Darul-Iman) is an association which was incorporated under the Associations Incorporation Act 1987 (WA) on 5 March 1992. The rules of Darul-Iman are set out in a constitution (the DI Constitution). According to the DI Constitution, the objects of Darul-Iman include 'to establish and maintain a non-profit association of an educational, social, recreational, non-political and non-sectarian nature to … develop, encourage and promote education according to Islamic Doctrines'.1
2 The plaintiff claims to be a member of Darul-Iman, and its President. In this action, he seeks declarations which identify the lawfully admitted members of Darul-Iman and which identify those members with lawful authority to direct the affairs of Darul-Iman. The persons with the lawful authority to direct the affairs of Darul-Iman are the members comprising its Council, who are entitled (subject to the direction of a general meeting of Darul-Iman) to exercise the powers of Darul-Iman under the DI Constitution.2 The Council of Darul-Iman comprises its office bearers (other than its auditor) - namely its President, Deputy President, Treasurer, and a minimum of two, and up to five, Councillors - and its Executive Officer.3
3 This action is but one part of a dispute with a protracted history. Some of that history was outlined in my reasons for decision in relation to an application made in the course of this action.4 The history of the dispute was also outlined in reasons for decision given by the Court of Appeal concerning an action brought by Darul-Iman which is related to these proceedings (CIV 1241 of 2005).5 It is unnecessary to repeat that history here. It suffices to say that for some years there has been a dispute between a number of persons who claim to be the members and office bearers of Darul-Iman. Essentially there has been a dispute between the plaintiff, Mr Omar, and persons associated with him (the Omar group) on the one hand, and Mr Raja (the third defendant), his brother Mr Ahmed (the second defendant) and persons associated with them (the Raja group) on the other hand. The persons in each of the Omar group and the Raja group claim to be the members, and members of the Council, of Darul-Iman. These proceedings were commenced to resolve that dispute, and in turn, to permit Darul-Iman itself to make a determination as to whether to ratify the decision to commence legal proceedings in CIV 1241 of 2005.
4 It is also convenient to note at this point that since the decision of the Court of Appeal to which I have referred, and in view of the dispute about the membership and control of Darul-Iman, it appears that Darul-Iman has been inactive. The minutes of an Annual General Meeting (AGM) of Darul-Iman on 23 October 2011 (the 2011 AGM) were in evidence. Mr A A Saaid's evidence was that the 2011 AGM was the last meeting of Darul-Iman 'because of the legal complications that have arisen after the decision of the Court of Appeal'.6
5 In these reasons for decision I deal with the following matters:
1. My findings in relation to the members of Darul-Iman, and the members of the Council of Darul-Iman;
2. The parties to the action and the participants in the trial;
3. Who are the members of Darul-Iman?
4. Who are the office bearers of Darul-Iman?
5. The declarations which should be made.
1. My findings in relation to the members of Darul-Iman, and the members of the Council of Darul-Iman
6 For the reasons which I explain in more detail below, and having regard to the evidence before the Court at the trial, I find that the following persons are the members of Darul-Iman at present, and a declaration should be made to this effect.
(a) Abdul Sulaiman Bin Omar;
(b) Abbasali Zuberali;
(c) Naim Said;
(d) Ahmad Redzwan Hassan;
(e) Mohamed Saleem Bin Mohamed Shariff;
(f) Abdullah Ahmad Saaid;
(g) Azim Ahmad Rajah;
(h) Maqsood Ahmad;
(i) Pervez Ibval Cheema;
(j) Herman Aidil Bolden;
(k) Mohammad Amirul Saaid;
(l) Ismail Dardah;
(m) Muhammad Ali Fayyaz; and
(n) Omar Raisul As Salam Syah.
7 For the reasons set out below, and having regard to the evidence before the Court at the trial, I find that the following persons are the members of the Council of Darul-Iman at present. A declaration should be made to that effect.
(a) President: Abdul Sulaiman Bin Omar;
(b) Deputy President: Muhammad Ali Fayyaz;
(c) Treasurer: Mohammad Amirul Saaid;
(d) Councillor: Naim Said;
(e) Councillor: Abdullah Ahmad Saaid;
(f) Executive Officer: Omar Raisul As Salam Syah.
8 According to the DI Constitution, the President, Deputy President, Treasurer and Councillors will remain in office until the next AGM of Darul-Iman which is conducted in accordance with the DI Constitution (at which point they retire from office, but are eligible for re-election at that meeting or thereafter). The Executive Officer is appointed by Darul-Iman.
9 Each of the members of Darul-Iman, and the members of its Council, is referred to in these reasons by their surnames, which are underlined in the lists above, other than Mr Mohammad Amirul Saaid and Mr Abdullah Ahmad Saaid who are referred to by their initials and surnames, to distinguish between them.
10 I emphasise two things in relation to the findings I have made about the members, and Council, of Darul-Iman.
11 First, the Court is only able to make findings on the basis of the evidence put before it at the trial. That evidence was, as I explain below, confined in its scope.
12 Secondly, the findings I have made pertain to the present point in time, and simply determine who are the present members of Darul-Iman, and the members of its Council. These findings will enable Darul-Iman to move beyond the present impasse created by the dispute about those matters. My findings do not preclude other persons being admitted to membership, or being elected (or in the case of the Executive Officer, appointed) as the members of the Council of Darul-Iman in the future, in accordance with the DI Constitution.
2. The parties to the action and the participants in the trial
In this section of my reasons I deal with the following:
- (a) the parties to the action;
(b) the participation of the second and third defendants in the litigation;
(c) the evidence adduced by the plaintiff at trial.
(a) The parties to the action
13 Initially, the plaintiff commenced this action against Darul-Iman and the second and third defendants. Darul-Iman itself played no part in the action given that its membership and control was the very subject of the litigation.
14 Shortly after this action was commenced, I ordered that the plaintiff place an advertisement in the West Australian newspaper inviting all persons who claimed to be members of Darul-Iman to notify the plaintiff's solicitors of that claim. Those persons were then invited to complete a statutory declaration as to their claim to membership of Darul-Iman, and to indicate if they wished to participate in the proceedings.
15 According to an affidavit filed by the plaintiff's solicitors, thirty four people responded to that advertisement, and each of them completed a statutory declaration indicating that they claimed to be members of Darul-Iman. (Neither that affidavit, nor those statutory declarations, were tendered in evidence, and none of the findings set out below are based on the information in those documents. I refer to those documents for present purposes simply to explain how persons claiming to be members of Darul-Iman were identified for the purposes of this action.) I subsequently ordered that each of the persons who responded to the advertisement be joined as defendants to this action. In addition, each of those defendants was advised of the hearing dates of the trial. Ultimately, none of the additional defendants filed an appearance or sought to appear in their own right at the trial.
16 Despite the Court's endeavours to get the matter to trial as quickly as possible, whilst making some allowance for the fact that the second and third defendants were unrepresented, it took some time to reach the point at which the matter was ready to be tried. That was due, in large part, to the fact that since the commencement of this action, both the plaintiff and the third defendant have spent considerable periods of time overseas, which meant that steps preparatory to trial took far longer to complete than they otherwise might have.
(b) The participation of the second and third defendants in the litigation
17 The second and third defendants each entered an appearance to this action, and until the trial commenced, they actively participated in the litigation of the action. Immediately prior to the commencement of the trial, the dispute between the parties was the subject of another mediation (two earlier mediation conferences, some months ago, having failed to resolve the dispute).
18 On the first day of the trial, counsel for the plaintiff advised the Court that an agreement had been reached at the mediation conference, in relation to the settlement of certain aspects of the dispute between the parties, including the substantive dispute the subject of the related action in CIV 1241 of 2005. However, those matters in dispute could not be finally resolved by consent, because the office-bearers of Darul-Iman were unable to enter into an agreement, or give consent to orders, for the settlement of the dispute in light of the question as to the identity of the persons with authority to act on behalf of Darul-Iman. Accordingly, the question of the membership and office bearers of Darul-Iman had to be resolved at the trial.
19 The Court was advised that as part of the agreement which had been reached between the plaintiff and the second and third defendants, the second and third defendants consented to the admission into evidence of the witness statements relied upon by the plaintiff, and various documents on which the plaintiff sought to rely, withdrew their joint statement of facts, issues and contentions, and then sought an order for leave to withdraw entirely from the proceedings.
20 As a result, the trial proceeded solely on the basis of the evidence adduced by the plaintiff. As I have already noted, none of the second to thirty seventh defendants sought to appear or to be heard at the trial, but some of them prepared witness statements which were tendered in evidence in support of the plaintiff's case.
(c) The evidence adduced by the plaintiff at trial
21 The plaintiff tendered in evidence a bundle of documents, and witness statements from the following persons:
(i) Abdul Sulaiman Bin Omar (the plaintiff) dated 29 April 2013 and 23 August 2013;
(ii) Abbasali Zuberali (the 24th defendant) dated 22 August 2013;
(iii) Naim Said (the 25th defendant) dated 13 August 2013;
(iv) Mohamed Saleem Bin Mohamed Shariff (the 27th defendant) dated 14 August 2013;
(v) Abdullah Ahmad Saaid (the 28th defendant) dated 29 April 2013 and 23 August 2013;
(vi) Azim Ahmad Rajah (the 30th defendant) dated 13 August 2013 and 28 August 2013;
(vii) Maqsood Ahmad (the 31st defendant) dated 12 August 2013;
(viii) Pervez Ibval Cheema (the 32nd defendant) dated 15 August 2013;
(ix) Herman Aidil Bolden (the 33rd defendant) dated 14 August 2013;
(x) Mohammad Amirul Saaid (the 34th defendant) dated 13 August 2013;
(xi) Ismail Dardah (the 35th defendant) dated 13 August 2013;
(xii) Muhammad Ali Fayyaz (the 36th defendant) dated 12 August 2013; and
(xiii) Omar Raisul As Salam Syah (the 37th defendant) dated 12 August 2013.
22 In addition, some supplementary oral evidence was given by Mr Rajah to clarify some of the names of persons mentioned, and to explain some of the terminology used, in the documents which were in evidence.
23 One of the key documents relied upon by the plaintiff in support his claim that he and certain other persons are the members, and members of the Council, of Darul-Iman was a copy of the minutes of the 2011 AGM. Evidence was given by Mr Omar, and Mr A A Saaid, that those minutes were an accurate record of the 2011 AGM. I accept their evidence. There was no evidence to suggest that the 2011 AGM was not held in accordance with the DI Constitution. Accordingly, I have relied on the information set out in the minutes of the 2011 AGM as one part of the evidence which identifies the present members of Darul-Iman, and which identifies the members of the Council of Darul-Iman, who were elected or appointed at that meeting.
24 It is also convenient to mention, at this stage, a number of other documents tendered by the plaintiff, namely five documents identified as the 'Register of Membership of Darul-Iman' for the years 2001 – 2002, 2002 – 2003, 2003 – 2004, 2004 – 2005 and 2005 – 2006, respectively. None of the persons who provided witness statements referred to these documents or confirmed their authenticity. On the face of each of these documents, however, it appears that they constitute the register of members which is required to be kept pursuant to the DI Constitution (see [25] below). Given the absence of other evidence confirming the nature and accuracy of these documents, I have relied on them solely as evidence which tends to support facts established, or inferences able to be drawn, by other documents.
3. Who are the members of Darul-Iman?
25 The DI Constitution requires that a Register of the membership of Darul-Iman be kept in Darul-Iman's office, and that that register contain a list of members of Darul-Iman, in alphabetical order, setting out the last known address of each member and the class of membership held.7
26 A copy of the register of members maintained for each of the years 2001 - 2002 to 2005 - 2006 was in evidence (as discussed above at [24]), but no register for any period since then was in evidence. Unfortunately the witness statements tendered by the plaintiff - in particular the witness statement of Mr Omar Raisul, who claimed to be the secretary for Darul-Iman - did not contain any explanation for the absence of a current register. Perhaps no register of members has been maintained in recent years. In any event, nothing in the DI Constitution suggests that anything turns on whether or not a register of members has been maintained. For present purposes, the absence of the register simply means that determining the membership of Darul-Iman requires a consideration of the evidence before the Court in relation to persons claiming to be members, by reference to the provisions of the DI Constitution which set out the requirements for membership. In addition, it is also necessary to consider the provisions of the DI Constitution which deal with the manner in which a member may cease to be a member of Darul-Iman.
(a) The categories of membership of Darul-Iman
27 According to the DI Constitution, Darul-Iman consists of its 'Foundation members and such other members as may subsequently be admitted to membership in accordance with the DI Constitution.'8
28 The Foundation members of Darul-Iman are 'those individuals and organisations who qualify for membership and who were present at, or apologies from, the meeting of individuals held to adopt the DI Constitution and to appoint a person to act on their behalf in matters dealing with incorporation.'9
29 The DI Constitution provides for various categories of membership, including, for example:
Member - any adult individual who has demonstrated an interest and commitment to the principles and development of Islamic education and who has achieved the eminence required within the Islamic Community felt to be appropriate from time to time, in the sole opinion of the Council of Darul-Iman …
Associate - any adult individual who has demonstrated an interest and commitment to the principles and development of Islamic education.10
(b) The requirements for membership of Darul-Iman
30 The requirements for membership of Darul-Iman are as follows. First, a person must fall within one of the categories of membership of Darul-Iman.11 Secondly, a member must have paid, annually, the 'contribution which the member has agreed to subscribe or is required to contribute as hereinafter provided'12 (the membership contribution). I will consider the requirement for payment of the membership contribution below. Thirdly, an applicant for membership must be 'approved by the Council of Darul-Iman Council or by a simple majority of members present and entitled to vote at a duly called General Meeting.'13 I note that the DI Constitution provides that Darul-Iman has 'full discretion in the admission or non-admission of any person to any category of membership'.14
31 According to the DI Constitution, a member may cease to become a member of Darul-Iman in any of three ways. First, a member may resign from Darul-Iman by providing notice in writing to its Executive Officer.15 Secondly, a member may be expelled (by a two thirds majority vote of the persons present and entitled to vote at a General Meeting) for breaching the DI Constitution or where the member's conduct is unbecoming of a member and prejudicial to Darul-Iman's interests.16 Thirdly, a member who has not paid the annual subscription, or any other fee levied in accordance with the DI Constitution, within three calendar months of its due date may be deemed to have resigned.17
32 In addition, counsel for the plaintiff submitted that a member of Darul-Iman could cease to become a member because the member's conduct - conveyed to Darul-Iman by words or deeds - indicated that the member had 'abandoned' Darul-Iman. For the reasons outlined below, it is unnecessary to deal further with that submission.
(c) Membership contributions
33 As I have noted, one of the requirements for membership of Darul-Iman is the payment by the member, annually, of the membership contribution the member has agreed to subscribe or that the member has been required to contribute. In other words, membership contributions may be voluntarily provided by members, or the member may be required to pay a membership contribution.
34 An issue which arose in the course of the trial was whether the persons whom the plaintiff claimed were members of Darul-Iman had paid the membership contributions required of them. As I explain below, there was some evidence that in some years membership contributions had been required, but that evidence was incomplete in that there was no evidence as to whether a membership contribution was required for other years. By way of example, the minutes for the AGMs for 2003 - 2004, 2005 - 2006, 2006 - 2007, 2008 - 2009 and 2009 - 2010 refer to the membership contributions for those financial years as having been fixed at the meeting. However, the minutes for the 2011 AGM made no reference to membership contributions having been set for that year. The minutes from AGMs for the years prior to 2003 - 2004 were not in evidence.
35 The amounts of the membership contribution also varied. The membership contribution fixed at the AGM for 2003 - 2004 was $80 per annum, the contribution fixed at the AGM for 2005 - 2006 was $15 per annum, the contribution fixed at the AGM for 2006 - 2007 was $10 per annum, but the contribution fixed at the AGM for 2008 - 2009 was $3 per annum and that level of contribution was also fixed at the 2009 - 2010 AGM.
36 Under the DI Constitution, the Council has power to determine the membership contributions to be paid, and these must be confirmed by a General Meeting.18 It appears to be contemplated that this confirmation will take place at an AGM.19
37 The DI Constitution refers to membership contributions being determined and paid on an annual basis.20 However, two matters should be noted.
38 First, although it is contemplated that membership contributions will be determined on an annual basis, there is nothing in the DI Constitution which requires that the Council determine that a membership contribution should be levied on members for every financial year (although clearly it may do so). I digress to note that the fact that the membership contribution required in particular years appears to have varied, and in some years were set at a minimal level - means that it would not be altogether surprising if, in other years, no membership contribution had been required from the members of Darul-Iman.
39 Secondly, the DI Constitution provides that any membership contribution which is levied is payable within 30 days of an account being rendered to the member for that contribution.21 In other words, a member's liability to pay a membership contribution appears to be triggered by the rendering of an account for that contribution. Such an account is 'prima facie evidence of the liability of such a member to pay the amount' stated in the account.22 There was no evidence as to an account for membership contributions having been levied to any member of Darul-Iman.
40 Most of the persons whom the plaintiff claimed were members of Darul-Iman gave evidence that they had paid any membership contributions required of them. There was nothing to contradict that evidence, and I have accepted their evidence as confirming that the membership contribution requirement in relation to their membership has been satisfied. That conclusion is also supported by the fact that at the 2011 AGM a number of persons are referred to as being members who were present at the meeting, and those persons voted on certain motions. I note that no member is entitled to vote at a General Meeting (which includes an AGM) if their membership contribution is in arrears at the date of the meeting.23 The fact that certain persons were recorded in those minutes as members who were present and voted on motions put to the meeting supports the conclusion that the membership contributions of those members were not in arrears as at the date of that meeting.
(d) The evidence in relation to the members of Darul-Iman
41 I turn now to deal with the evidence in relation to the persons whom the plaintiff claimed were members of Darul-Iman.
(i) Abdul Sulaiman Bin Omar
42 Mr Omar, Mr A A Saaid and Mr Said attended a meeting on 5 January 1992 at which the incorporation of Darul-Iman was discussed. Mr A A Saaid prepared the minutes of this meeting, which were in evidence, and I accept the evidence of Mr Omar, Mr A A Saaid and Mr Said that the minutes are an accurate record of the meeting.
43 At the meeting a draft of the DI Constitution was approved by those at the meeting, and it was determined that Mr Omar was to organise the 'registration' of that constitution, which appears to be a reference to the incorporation of Darul-Iman. I find that this was the meeting held to adopt the DI Constitution and to appoint a person to deal with matters dealing with incorporation, and therefore, the persons present at this meeting were the Foundation members of Darul-Iman pursuant to the DI Constitution.24
44 I accept Mr Omar's evidence that following the incorporation of Darul-Iman, he applied for membership of Darul-Iman as an Associate member. A copy of his application for membership was in evidence and was dated 7 March 1992. A notation on the bottom of that application form indicates that the application for membership was approved by Mr A A Saaid and Mr Said on 11 March 1992.
45 Having regard to this evidence, I find that Mr Omar was a Foundation member of Darul-Iman, and that following the incorporation of Darul-Iman he was confirmed as an Associate member of Darul-Iman.
46 I also find that Mr Omar is still a member of Darul-Iman, having regard to the following evidence. First, Mr Omar's evidence is that he has never resigned from Darul-Iman and he considers himself still to be a member of Darul-Iman. Secondly, the minutes of the 2011 AGM indicate that Mr Omar was a member of Darul-Iman who attended that meeting. Thirdly, there was no evidence to suggest that Mr Omar had been expelled from Darul-Iman. Fourthly, in so far as membership contributions are concerned, there was no evidence as to what accounts had been rendered by Darul-Iman in respect of membership contributions from Mr Omar. However, Mr Omar's evidence was that he has always paid membership fees for membership contributions which have been due. In addition, the minutes of the 2011 AGM indicate that Mr Omar was a member of Darul-Iman who was permitted to vote at the meeting. That supports the conclusion that his membership contributions were not in arrears as at the date of that meeting.25 In addition, the minutes of the 2011 AGM do not refer to any decision having been made to require a membership contribution from members for the 2011 - 2012 financial year. In the absence of any evidence to suggest that Mr Omar has not paid any membership contributions required of him, there is no basis for concluding that Mr Omar is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(ii) Abbasali Zuberali
47 Mr Zuberali's evidence was that he joined Darul-Iman in 2001. Mr Zuberali's membership application form was not in evidence. However, other evidence supports the conclusion that Mr Zuberali's application for membership was approved by Darul-Iman. First, Mr Zuberali's name appears in a register of members for Darul-Iman dated 2001 - 2002. Secondly, minutes of a meeting of Darul-Iman held on 13 May 2001 were in evidence. Those minutes were confirmed as a true record of the meeting held on that date by Mr Mohamed Shariff. Those minutes indicate that 'approval was given for 11 Surah Brothers as listed below'.26 One of the names listed was 'Maulana Abbas'. Mr Rajah gave evidence that the term 'Surah brothers' is a reference to Members of Darul-Iman, and that the term 'Maulana' is a reference to an Islamic teacher. Mr Zuberali's evidence was that he is a teacher of Islamic studies. Mr Rajah also gave evidence that the reference to Maulana Abbas was a reference to Mr Zuberali. Accordingly, I find that Mr Zuberali's application for membership of Darul-Iman was approved by Darul-Iman in 2001.
48 I also find that Mr Zuberali is still a member of Darul-Iman, having regard to the following evidence. First, Mr Zuberali's evidence is that he has never resigned from Darul-Iman and he considers himself to still be a member of Darul-Iman. Secondly, the minutes of the 2011 AGM indicate that Mr Zuberali gave a proxy to Mr Omar to vote on his behalf at that meeting, which could only have been done if Mr Zuberali was a member of Darul-Iman at that time. Thirdly, there was no evidence to suggest that Mr Zuberali had been expelled from Darul-Iman.
49 Finally, in so far as membership contributions are concerned, Mr Zuberali stated that he paid a membership contribution when he joined Darul-Iman. His statement did not otherwise address the payment of membership fees. However, I note Mr Zuberali's evidence (which was confirmed by a number of documents) was that he was elected as the President of Darul-Iman from 2001 until 2004. Given that the DI Constitution provides that all elected offices be filled by adults who are financial members of Darul-Iman,27 it can be inferred that if any membership contributions had been required of Mr Zuberali by that time, he had paid those membership contributions.
50 In addition, the fact that Mr Zuberali was permitted to give a proxy for the 2011 AGM supports the conclusion that his membership contributions were not in arrears as at the date of that meeting.28 In addition, the minutes of the 2011 AGM do not refer to any decision having been made to require a membership contribution from members for the 2011 - 2012 financial year. In any event, there was no evidence that any account for membership contributions had been rendered in respect of Mr Zuberali's membership of Darul-Iman. In the absence of any evidence to suggest that Mr Zuberali has not paid any membership contributions required of him, there is no basis for concluding that Mr Zuberali is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(iii) Naim Said
51 For the reasons outlined above at [43] and [44] I find that Mr Said was a Foundation member of Darul-Iman.
52 I accept Mr Said's evidence that following the incorporation of Darul-Iman, he applied for membership of Darul-Iman as an Associate member. A copy of his application for membership was in evidence. Although he stated that he made that application on 11 March 1992, the copy of his application which is in evidence appears to have been signed by him and dated 7 March 1992. A notation on the bottom of that application form indicates that the application for membership was approved by Mr A A Saaid and Mr Omar on 11 March 1992.
53 Having regard to this evidence, I find that Mr Said was a Foundation member of Darul-Iman, and that following the incorporation of Darul-Iman he was confirmed as an Associate member of Darul-Iman.
54 Mr Said did not deal with his current membership in his witness statement. However, the minutes of the 2011 AGM indicate that Mr Said was a member of Darul-Iman who attended that meeting. In addition, it could hardly be expected that if Mr Said no longer considered himself a member of Darul-Iman that he would have co-operated with the plaintiff in supporting the present action, or prepared a witness statement. There is also no evidence to suggest that Mr Said is no longer a member of Darul-Iman. There was, for instance, no evidence to suggest that Mr Said had been expelled from Darul-Iman.
55 Finally, there was also no evidence as to whether any account for membership contributions had ever been rendered in respect of Mr Said, or whether he had failed to pay any membership contributions. In these circumstances, there is no basis for concluding that Mr Said is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
56 In view of the available evidence, I find that it is more likely than not that Mr Said is a current member of Darul-Iman, and I so find.
(iv) Ahmad Redzwan Hassan
57 No witness statement by Mr Hassan was tendered in evidence. Counsel for the plaintiff submitted that there was sufficient evidence before the Court to support the conclusion that Mr Hassan was a member of Darul-Iman. Although the evidence in relation to Mr Hassan's present membership was more tenuous than in respect of any other person whom the plaintiff claimed was a current member of Darul-Iman, having carefully considered the available evidence I find that Mr Hassan is a member of Darul-Iman, for the reasons which follow.
58 The minutes of the meeting of Darul-Iman held on 13 May 2001 (to which I referred above at [46]) indicate that 'Captain Redzwan' was approved as a 'Surah Brother' (that is, as a member of Darul-Iman) at that meeting. I accept that that was a reference to Mr Hassan, in view of the fact that the Register of Membership for Darul-Iman 2001 - 2002, which was in evidence, lists Mr Hassan as a member of Darul-Iman. In addition, the minutes for the 2009 - 2010 AGM of Darul-Iman refer to 'Captain Redzwan Hassan'.
59 Accordingly, I find that Mr Hassan became a member of Darul-Iman in 2001 when his membership was approved at a meeting of Darul-Iman.
60 As for whether Mr Hassan remains a member of Darul-Iman, the minutes of the 2011 AGM refer to Mr Hassan as an 'absent member'. That permits an inference to be drawn that Mr Hassan was regarded as a member of Darul-Iman as at October 2011, although he was not present at that meeting. There was no evidence to suggest that Mr Hassan's membership has come to an end since that time. There was no evidence, for example, to suggest that Mr Hassan had been expelled from Darul-Iman.
61 In addition, other evidence - which indicates that Mr Hassan has been a continuous member of Darul-Iman since 2001 - militates against the likelihood of the conclusion that Mr Hassan's membership of Darul-Iman has come to an end since October 2011. Mr Hassan's name appears in the Registers of Membership for Darul-Iman for 2001 - 2002, 2002 - 2003, 2004 - 2005, 2005 - 2006. His name is not listed on the Register of Members of Darul-Iman for 2003 - 2004 but his name is listed in the minutes of the 2003 - 2004 AGM of Darul-Iman (held on 10 October 2004) as a member of Darul-Iman who attended that meeting. Mr Hassan is also listed in the minutes of the AGMs of Darul-Iman for 2005 - 2006, 2006 - 2007, 2007 – 2008, 2008 - 2009, 2009 - 2010 as a member who was present at those meetings.
62 There was also no evidence in relation to whether any account for membership contributions had ever been rendered in respect of Mr Hassan, or whether he had failed to pay any membership contributions. In these circumstances, there is no basis for concluding that Mr Hassan is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
63 In view of the available evidence, I find that it is more likely than not that Mr Hassan is a current member of Darul-Iman, and I so find.
(v) Mohamed Saleem Bin Mohamed Shariff
64 Mr Mohamed Shariff's evidence was that he became a member of Darul-Iman on 13 May 2001. The minutes of the meeting of Darul-Iman held on that date, which Mr Mohamed Shariff says he attended, indicate that Mr 'Saleem Shariff' was one of the persons for whom approval was given to become a 'Surah Brother' - that is, a member of Darul-Iman. I find that Mr Mohamed Shariff became a member of Darul-Iman when his membership was approved by Darul-Iman on 13 May 2001.
65 I also find that Mr Mohamed Shariff remains a member of Darul-Iman, having regard to the following evidence. First, Mr Mohamed Shariff stated in his evidence that he remains a member of Darul-Iman and has never resigned. Secondly, Mr 'Saleem Shariff' is referred to in the minutes of the 2011 AGM as an absent member, which permits the inference that he was regarded by Darul-Iman as a member at that time, but that he was not present at the meeting. Thirdly, there was no evidence to suggest that Mr Mohamed Shariff has been expelled from Darul-Iman.
66 Finally, in so far as membership contributions are concerned, there was no evidence as to what accounts had been rendered by Darul-Iman in respect of membership contributions from Mr Mohamed Shariff. However, his evidence was that he has always paid 'all of his dues'. In particular, he stated that he had paid membership contributions in 2004 and 2009, and annexed to his witness statement were copies of receipts for those payments. In addition, the minutes of the 2011 AGM do not refer to any decision having been made to require a membership contribution from members for the 2011 - 2012 financial year. In the absence of any evidence to suggest that Mr Mohamed Shariff has not paid any membership contributions required of him, there is no basis for concluding that he is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(vi) Abdullah Ahmad Saaid
67 For the reasons outlined above at [43] and [44] I find that Mr A A Saaid was a Foundation member of Darul-Iman.
68 I accept Mr A A Saaid's evidence that he applied for membership of Darul-Iman as an Associate member. A copy of his application for membership was in evidence. Although Mr A A Saaid stated that he made that application on 11 March 1992, a copy of his application which is in evidence appears to have been signed by him and dated 7 March 1992. A notation on the bottom of that application form indicates that the application for membership was approved by Mr Said and Mr Omar on 11 March 1992.
69 Having regard to this evidence, I find that Mr A A Saaid was a Foundation member of Darul-Iman, and that following the incorporation of Darul-Iman he was confirmed as an Associate member of Darul-Iman.
70 I also find that Mr A A Saaid is still a member of Darul-Iman, having regard to the following evidence. First, Mr A A Saaid's evidence is that he has never resigned from Darul-Iman and he considers himself still to be a member of Darul-Iman. Secondly, the minutes of the 2011 AGM indicate that Mr A A Saaid was a member of Darul-Iman who attended that meeting. Thirdly, there was no evidence to suggest that Mr A A Saaid has been expelled from Darul-Iman.
71 Finally, in so far as membership contributions are concerned, there was no evidence as to what accounts had been rendered by Darul-Iman in respect of membership contributions from Mr A A Saaid. However, Mr A A Saaid's evidence was that he has always paid membership fees for membership contributions which have been due. In addition, the minutes of the 2011 AGM indicate that Mr A A Saaid was a member of Darul-Iman who was permitted to vote at the meeting. That supports the conclusion that his membership contributions were not in arrears as at the date of that meeting.29 In addition, the minutes of the 2011 AGM do not refer to any decision having been made to require a membership contribution from members for the 2011 - 2012 financial year. In the absence of any evidence to suggest that Mr A A Saaid has not paid any membership contributions required of him there is no basis for concluding that he is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(vii) Azim Ahmad Rajah
72 Mr Rajah gave evidence that he had filled out an application form and paid a membership fee of $5.00 to join Darul-Iman. That appears to have occurred in 2011. There was no direct evidence that Mr Rajah's membership application was approved by Darul-Iman or its Council. However, in the minutes of the 2011 AGM, Mr Rajah is noted as having given a proxy to Mr Fayyaz. That could only have been done if Mr Rajah was a member of Darul-Iman at that time. I find that it is more likely than not that Mr Rajah became a member of Darul-Iman in 2011.
73 I also find that Mr Rajah is still a member of Darul-Iman, for the following reasons. First, Mr Rajah's evidence was that he has not resigned as a member. Secondly, he attended the trial and gave supplementary oral evidence in support of the plaintiff's case, which indicates a continuing commitment to Darul-Iman. Thirdly, there was no evidence to suggest that Mr Rajah had been expelled from Darul-Iman.
74 Finally, in so far as membership contributions are concerned, Mr Rajah stated that he paid a membership contribution when he joined Darul-Iman. His statement did not otherwise address the payment of membership fees. The fact that Mr Rajah was permitted to give a proxy for the 2011 AGM supports the conclusion that his membership contributions were not in arrears as at the date of that meeting.30 In addition, the minutes of the 2011 AGM do not refer to any decision having been made to require a membership contribution from members for the 2011 - 2012 financial year. In any event, there was no evidence that any account for membership contributions had been rendered in respect of Mr Rajah's membership of Darul-Iman. In the absence of any evidence to suggest that Mr Rajah has not paid any membership contributions required of him, there is no basis for concluding that Mr Rajah is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(viii) Maqsood Ahmad
75 In his witness statement, Mr Ahmad stated that he was admitted to membership of Darul-Iman on 20 April 2002. The minutes of a meeting of Darul-Iman on 28 April 2002 were in evidence. The evidence of Mr Said and Mr Mohamed Shariff was that those minutes were a true record of what occurred at that meeting. Those minutes indicate that at the meeting, a Mr Saaid proposed that four more 'Brothers', including Mr Ahmad, be accepted as 'Surah brothers'. The minutes indicate that 'all present agreed the decision of the Amir' which, having regard to the context, suggests that all present gave their approval to those persons, including Mr Ahmad, being admitted to membership of Darul-Iman.
76 On the other hand, annexed to Mr Ahmad's witness statement was a copy of a membership application form which appears to have been completed on 16 September 2004, and which appears to have been accepted by the Council (and signed by Mr Said, as the then Deputy President of Darul-Iman) on 10 October 2004.
77 The Register of Members for Darul-Iman for 2001 - 2002, 2002 - 2003, 2003 - 2004, 2004 - 2005, and 2005 - 2006 lists Mr Ahmad as a member of Darul-Iman throughout those years.
78 For present purposes, nothing turns on precisely when Mr Ahmad became a member of Darul-Iman. The evidence establishes on the balance of probabilities that Mr Ahmad became a member in 2002, and I so find.
79 I also find that Mr Ahmad is presently a member of Darul-Iman, having regard to the following evidence. First, Mr Ahmad states that he has not resigned as a member, and considers that he therefore remains a member of Darul-Iman. Secondly, the minutes of the 2011 AGM indicate that Mr Ahmad was an 'absent member' which suggests that he was considered a member, but was not present at that meeting. Thirdly, there was no evidence to suggest that Mr Ahmad has been expelled from Darul-Iman.
80 Finally, in so far as membership contributions are concerned, there was no evidence as to what accounts had been rendered by Darul-Iman in respect of membership contributions from Mr Ahmad. However, Mr Ahmad stated that he made a members' contribution of $1000 in 2003, and had paid membership fees in 2004, 2009 and 2011. In addition, the minutes of the 2011 AGM do not refer to any decision having been made to require a membership contribution from members for the 2011 - 2012 financial year. In the absence of any evidence to suggest that Mr Ahmad has not paid any membership contributions required of him, there is no basis for concluding that he is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(ix) Pervez Ibval Cheema
81 Mr Cheema stated in his witness statement that he was admitted to membership of Darul-Iman on 29 June 2002. That was confirmed by the minutes of a meeting of Darul-Iman held on 29 June 2002 which were in evidence. (The evidence of Mr Zuberali was that those minutes are a true record of the meeting held on 29 June 2002.) Those minutes record that 'new Surah Brothers' were introduced at that meeting, including Mr Cheema. Having regard to the evidence referred to at [47] I accept that this meant that Mr Cheema had been approved as a member of Darul-Iman. In addition, the Register of Membership for Darul-Iman 2001 - 2002 indicates that Mr Cheema was a member of Darul-Iman in that period.
82 I also find that it is more likely not that Mr Cheema is currently a member of Darul-Iman, for the following reasons. First, Mr Cheema stated that he has not resigned as a member of Darul-Iman. Secondly, there was evidence of Mr Cheema's continuing membership of Darul-Iman in the years after he first joined which provides some support for his claim that he has been a member of Darul-Iman since he first joined. Mr Cheema was referred to in the Registers of Membership of Darul-Iman which were in evidence - for the years 2002 - 2003, 2003 - 2004, 2004 - 2005 and 2005 - 2006. Furthermore, although Mr Cheema is not referred in the minutes of the 2011 AGM, he is referred to in the minutes of a meeting of Darul-Iman held on 16 August 2009 in a context which suggests that he was a member of Darul-Iman at that time. Thirdly, there was no evidence to suggest that Mr Cheema has been expelled from Darul-Iman.
83 As for membership contributions, Mr Cheema stated that he had not been required to pay any membership fees and had not received any invoice or other requirement for payment. In the absence of any evidence to suggest that Mr Cheema has not paid membership contributions which were in fact required of him, there is no basis for concluding that he is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(x) Herman Aidil Bolden
84 Mr Bolden stated in his witness statement that he first became a member of Darul-Iman in 2004. The Register of Membership for Darul-Iman 2004 - 2005 indicates that Mr Bolden was a member of Darul-Iman in that period. Mr Bolden's name also appears on the list of attendees at the AGM for Darul-Iman held on 10 October 2004, and he is listed as a member who was present at the AGM on 14 August 2005. He was elected the Executive Officer of Darul-Iman at that meeting. I find that Mr Bolden became a member of Darul-Iman in 2004.
85 I also find that it is more likely not that Mr Bolden is currently a member of Darul-Iman, for the following reasons. First, Mr Bolden stated that he has not resigned as a member of Darul-Iman. Secondly, there was evidence of Mr Bolden's continuing membership of Darul-Iman in the years after he first joined which provides some support for the conclusion that he remains a member of Darul-Iman. In addition to the evidence to which I have already referred, I note that Mr Bolden was referred to as having attended minutes of meetings of Darul-Iman on 12 November 2006 and the AGM on 11 December 2006, and gave a proxy for the AGM on 15 February 2009 and the AGM on 7 March 2010. Thirdly, there was no evidence to suggest that Mr Bolden has been expelled from Darul-Iman.
86 Finally, Mr Bolden's evidence was that he has always paid membership fees for membership amounts which have been due. In the absence of any evidence to suggest that Mr Bolden has not paid membership contributions which were in fact required of him, there is no basis for concluding that he is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(xi) Mohammad Amirul Saaid
87 Mr M A Saaid stated that he became a member of Darul-Iman at an AGM on 9 December 2006 and in the minutes for that meeting he is referred to as a new member of Darul-Iman. Mr M A Saaid's application for membership was also in evidence, and it also confirms that he was approved as a member, his application being endorsed as approved by the President of Darul-Iman on 12 December 2006. I therefore find that Mr M A Saaid became a member of Darul-Iman in 2006.
88 I also find that Mr M A Saaid is a current member of Darul-Iman, for the following reasons. First, Mr M A Saaid stated that he has not resigned as a member of Darul-Iman. Secondly, the minutes of the 2011 AGM list 'Maulana Muhammad Amirul' to be a member in attendance at that meeting. I understand that to be a reference to Mr M A Saaid. Thirdly, there was no evidence to suggest that Mr M A Saaid has been expelled from Darul-Iman.
89 Finally, Mr M A Saaid stated that he paid membership contributions in 2007 and 2009 and he produced receipts for those contributions. Further, the minutes of the 2011 AGM indicate that Mr M A Saaid was elected as Treasurer of Darul-Iman at that meeting. The fact that he was elected as an office-bearer permits the inference that his membership contributions were not in arrears at that time. In addition, the minutes of the 2011 AGM do not refer to any decision having been made to require a membership contribution from members for the 2011 / 2012 financial year. In the absence of any evidence to suggest that Mr M A Saaid has not paid any membership contributions required of him, there is no basis for concluding that he is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(xii) Ismail Dardah
90 Mr Dardah's evidence was that he was admitted as a member of Darul-Iman at a general meeting held on 26 May 2002. The minutes of that meeting, which were in evidence, indicate that 'Br Ismail' (which I accept is a reference to Mr Dardah) was welcomed as an 'additional surah Brother'. Having regard to the evidence referred to in [47] I accept that this indicates that Mr Dardah was approved as a member of Darul-Iman at that meeting. The Register of Membership for Darul-Iman 2001 - 2002 also indicates that Mr Dardah was a member of Darul-Iman during that period.
91 I also find that Mr Dardah is a current member of Darul-Iman, for the following reasons. First, Mr Dardah stated that he has not resigned as a member of Darul-Iman. Secondly, Mr Dardah is noted in the minutes of the 2011 AGM as an 'absent member' which permits the inference to be drawn that he was considered to be a member at that time, but was not in attendance at the meeting. Thirdly, there was no evidence to suggest that Mr Dardah has been expelled from Darul-Iman.
92 Finally, there was no evidence in relation to whether any account for membership contributions had ever been rendered in respect of Mr Dardah, or whether he had paid any membership contributions. In the absence of any such evidence, there is no basis for concluding that Mr Dardah is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(xiii) Muhammad Ali Fayyaz
93 Mr Fayyaz's evidence was that his application for membership of Darul-Iman was approved on 9 January 2009. A copy of his membership application was in evidence, which appears to have been endorsed as accepted by Mr Said, on behalf of the Council of Darul-Iman, on 9 January 2009. In view of this evidence, I find that Mr Fayyaz became a member of Darul-Iman in 2009.
94 I also find that Mr Fayyaz is a current member of Darul-Iman, for the following reasons. First, Mr Fayyaz stated that he has never tendered his resignation, nor received any notification that his membership was challenged in any way. Secondly, Mr Fayyaz is referred to in the minutes of the 2011 AGM as a member who attended that meeting. Those minutes indicate that Mr Fayyaz was elected the Deputy President of Darul-Iman at that meeting. Thirdly, there was no evidence to suggest that Mr Fayyaz has been expelled from Darul-Iman.
95 As for membership contributions, Mr Fayyaz stated in his witness statement that he had paid Darul-Iman membership fees which he had been required to pay for his membership. Annexed to his witness statements were receipts for membership contributions apparently paid in 2010 and 2011. The fact that Mr Fayyaz was elected the Deputy President of Darul-Iman at the 2011 AGM permits the inference that his membership contributions were not in arrears at that time. There was no evidence that an account for more recent membership contributions had been rendered in respect of Mr Fayyaz's membership. In the absence of any evidence to suggest that any membership contributions in fact required of Mr Fayyaz had not been paid, there is no basis for concluding that Mr Fayyaz is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(xiv) Omar Raisul As Salam Syah
96 Mr Omar Raisul stated that he first became involved with Darul-Iman in 2004. The Register of Membership for Darul-Iman for 2004 - 2005 lists Mr Omar R A Syah as a member during that period. Mr Omar Raisul signed an attendance register for the AGM of Darul-Iman held on 10 October 2004 and for the AGM on 14 August 2005. The fact that he is noted as having attended as a member at those meetings supports the conclusion that Mr Omar Raisul was a member at that time. For these reasons, I find that Mr Omar Raisul became a member of Darul-Iman in 2004.
97 I also find that Mr Omar Raisul is currently a member of Darul-Iman, for the following reasons. First, Mr Omar Raisul stated that he has never resigned his membership of Darul-Iman. Secondly, the minutes of the 2011 AGM indicate that Mr Omar Raisul was a member in attendance at that meeting, and that he was appointed the secretary (that is, the Executive Officer) of Darul-Iman for 2011 - 2012. Thirdly, there was no evidence to suggest that Mr Omar Raisul has been expelled from Darul-Iman.
98 Fourthly, Mr Omar Raisul stated that he paid membership fees to join Darul-Iman, and that he has paid membership fees annually. Mr Omar Raisul stated that he did not have copies of all of the receipts for payment of those membership fees, but annexed to his statement were copies of receipts for membership contributions paid in 2005, 2007, 2009, 2010 and 2011. There was no evidence that an account for more recent membership contributions had been rendered in respect of Mr Omar Raisul's membership. In the absence of any evidence to suggest that any membership contributions in fact required of Mr Omar Raisul had not been paid, there is no basis for concluding that Mr Omar Raisul is in arrears of membership contributions so as to raise any question of him being deemed to have resigned as a member.
(e) Evidence in relation to other persons
99 None of the documents tendered in evidence established the membership of Darul-Iman by the fourth to twenty-third defendants. Accordingly, there is no basis on which any finding could be made that these persons are now members of Darul-Iman.
100 Some of the documents tendered in evidence made reference to Mr Fazidin Amir (the 29th defendant). Although it initially appeared that counsel for the plaintiff intended to endeavour to prove that Mr Amir was a member of Darul-Iman, he subsequently did not pursue a finding to that effect. Although some of the documents in evidence refer to Mr Amir having been a member of Darul-Iman at various times (notably in 2005, 2006 and in 2009), he was not referred to in the minutes of the 2011 AGM as having been a member (either in attendance or an absent member) on that occasion, and there was no evidence to establish that Mr Amir remains a member of Darul-Iman. Accordingly there is no basis on which a finding could be made that Mr Amir is presently a member of Darul-Iman. 101 For completeness, I note that the documents in evidence contained references to other persons which suggested that these persons may have been members of Darul-Iman at various points in time including Mr Mohamed Firdaridzuan Mohammad, Mr Mathir Mohammad Zait, and Mr Sam Chier. However, none of those persons responded to the advertisement seeking to identify the members of Darul-Iman, and none of them had otherwise come to the attention of the Court as possible members of Darul-Iman who should be joined as defendants. None of those persons were referred to in the minutes of the 2011 AGM as having been a member of Darul-Iman (either in attendance or an absent member) at that stage, and there was no evidence to establish that any of these individuals remains a member of Darul-Iman.
102 That brings me, finally, to Mr Fayyaz Raja (the second defendant) and Mr Imtiaz Ahmed (the third defendant). Some of the documents in evidence contained references to Mr Raja and Mr Ahmed as having been members of Darul-Iman and they were referred to as 'absent members' in the minutes of the 2011 AGM. However, it seems to me that their decisions to withdraw their joint statement of issues, facts and contentions (so that there is nothing before the Court which asserts their membership of Darul-Iman) and to withdraw from any participation in the trial must be seen as the clearest indication that they do not pursue any finding by the Court that they are members of Darul-Iman.
4. Who are the members of the Council of Darul-Iman?
103 I turn to consider the evidence in relation to the members of the Council of Darul-Iman. I will begin by discussing my findings in relation to the 2011 AGM, which are relevant to each of the office holders on the Council of Darul-Iman.
104 For the reasons set out above at [4], I find that the 2011 AGM was the last AGM held by Darul-Iman, and that the office bearers elected and appointed on that date continue in office until the next AGM. The ordinary business of an AGM includes conducting elections for office bearers.31 I note that the DI Constitution requires that an AGM be held during July or as soon thereafter as practicable in each financial year, provided that the Notice of Meeting shall be given before the end of December.32 The AGM for Darul-Iman is, therefore, now overdue.
(a) President
105 Mr Omar's evidence is that he was elected as the President of Darul-Iman at the 2011 AGM. The minutes of the 2011 AGM also indicate that Mr Omar was elected as the President of Darul-Iman for the 2011 - 2012 financial year.
106 In light of Mr Omar's evidence that he has paid membership contributions whenever they fall due, and in the absence of any contrary evidence, there is no basis for concluding that the office of President has become vacant by reason of non-payment of membership contributions.33
107 Accordingly, I find that Mr Omar is the present President of Darul-Iman. His term as President will cease at the end of the next AGM of Darul-Iman, although he will be eligible for re-election at that meeting in accordance with the DI Constitution.
(b) Deputy President
108 Mr Fayyaz's evidence is that he is the Deputy President of Darul-Iman. The minutes of the 2011 AGM confirm that Mr Fayyaz was elected to that position at that meeting.
109 For the reasons set out above at [95] there is no basis for concluding that the office of Deputy President has become vacant by reason of non-payment of membership contributions.
110 Accordingly, I find that Mr Fayyaz is the present Deputy President of Darul-Iman. His term as Deputy President will cease at the end of the next AGM of Darul-Iman, although he will be eligible for re-election at that meeting in accordance with the DI Constitution.
(c) Treasurer
111 The minutes of the 2011 AGM indicate that 'Mohammad Amirul' (which I understand to be a reference to Mr M A Saaid) was elected as the Treasurer of Darul-Iman at that meeting.
112 For the reasons outlined at [71] above, there is no basis for concluding that the office of Treasurer has become vacant by reason of non-payment of membership contributions.
113 Accordingly, I find that Mr M A Saaid is the present Treasurer of Darul-Iman. His term as Treasurer will cease at the end of the next AGM of Darul-Iman, although he will be eligible for re-election at that meeting in accordance with the DI Constitution.
(d) Councillor
114 Mr A A Saaid's evidence is that he was elected as a Councillor at the 2011 AGM. The minutes of the 2011 AGM also indicate that Mr A A Saaid was elected as a Councillor for Darul-Iman for the 2011 - 2012 financial year.
115 In light of Mr A A Saaid's evidence that he has paid membership contributions whenever they fall due, and in the absence of any other evidence, there is no basis for concluding that the office of Councillor occupied by Mr A A Saaid has become vacant by reason of non-payment of membership contributions.34
116 Accordingly, I find that Mr A A Saaid is a Councillor for Darul-Iman. His term as a Councillor will cease at the end of the next AGM of Darul-Iman, although he will be eligible for re-election at that meeting in accordance with the DI Constitution.
(e) Councillor
117 The minutes of the 2011 AGM also indicate that Mr Said was elected as a Councillor for Darul-Iman for the 2011 - 2012 financial year.
118 For the reasons set out above at [55] there is no basis for concluding that the office of Councillor occupied by Mr Said has become vacant by reason of non-payment of membership contributions.
119 Accordingly, I find that Mr Said is a Councillor for Darul-Iman. His term as a Councillor will cease at the end of the next AGM of Darul-Iman, although he will be eligible for re-election at that meeting in accordance with the DI Constitution.
(f) Executive Officer
120 Mr Omar Raisul stated that he was appointed the secretary of Darul-Iman for 2011 - 2012 and the minutes of the 2011 AGM confirm that Mr Omar Raisul was appointed the 'Secretary' (that is, the Executive Officer) of Darul-Iman at that meeting. There is no evidence to suggest that his appointment has come to an end. Accordingly, I find that Mr Omar Raisul is the present Executive Officer of Darul-Iman.
121 The Executive Officer is appointed, not elected, and it appears from the DI Constitution that the Executive Officer position is not an appointment for a fixed term, but rather continues until the incumbent, or Darul-Iman, decides to bring the appointment to an end, subject to certain limitations which are not presently relevant.35
5. The declarations which should be made
122 Declarations should be made as to the matters set out in [6] and [7] above. I will hear from counsel as to the form of these orders, and to any other orders which should be made to conclude this action.
1 Darul-Iman Constitution cl 3(a).
2 Darul-Iman Constitution cl 15(a).
3 Darul-Iman Constitution cl 15(a).
4Omar v Darul-Iman (WA) Inc[2013] WASC 311.
5Raja v Darul-Iman (No 2)[2011] WASCA 251.
6 Exhibit H, Supplementary Witness Statement of Abdullah Ahmad Saaid, dated 23 August 2013, [10].
7 Darul-Iman Constitution cl 4(f) and cl 22.
8 Darul-Iman Constitution cl 2.
9 Darul-Iman Constitution cl 4(a).
10 Darul-Iman Constitution cl 4(c).
11 Darul-Iman Constitution cl 4(b).
12 Darul-Iman Constitution cl 4(b).
13 Darul-Iman Constitution cl 4(e).
14 Darul-Iman Constitution cl 4(e).
15 Darul-Iman Constitution cl 5(a).
16 Darul-Iman Constitution cl 5(b).
17 Darul-Iman Constitution cl 5(c).
18 Darul-Iman Constitution cl 18(a).
19 Darul-Iman Constitution cl 9(b).
20 Darul-Iman Constitution cl 18(a)(ii).
21 Darul-Iman Constitution cl 18(b).
22 Darul-Iman Constitution cl 18(c).
23 Darul-Iman Constitution cl 14(l).
24 Darul-Iman Constitution cl 4(a).
25 Cf Darul-Iman Constitution cl 14(l).
26 Exhibit A-49, Minutes of the Meeting of Darul-Iman held 13 May 2001, [6].
27 Darul-Iman Constitution cl 16(c).
28 Cf Darul-Iman Constitution cl 14(l) and cl 13(a).
29 Cf Darul-Iman Constitution cl 14(l).
30 Cf Darul-Iman Constitution cl 14(l) and cl 13(a).
31 Darul-Iman Constitution cl 9(b).
32 Darul-Iman Constitution cl 9(a).
33 Cf Darul-Iman Constitution cl 16(d).
34 Cf Darul-Iman Constitution cl 16(d).
35 See Darul-Iman Constitution cl 17(c).
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