Rana v Survery

Background 2The Association is an incorporated association that at the relevant time was incorporated under the Associations Incorporation Act 1984 (Act). Its objectives as stated in its Constitution are to "foster and promote Islam and to assist Muslims to abide by the principles of Islam in regard to their social, moral and spiritual way of life and to organise instructions in certain languages and cultures as determined by the members from time to time". 3The appellants are members of the Executive Council of the Association. The first respondent (Dr Survery) and the second respondent (Mr Cheema) are respectively the President and Secretary of the Association and are also members of the Executive Council. 4The following provisions of the Association's Constitution are relevant to the issues in these proceedings: "2. MEMBERSHIP 1) The membership of the Association shall be of three categories: a) Full member b) Association member and c) Honorary member 2) Excepting that the Associate and Honorary members cannot be elected to any position in the executive council nor that they can vote in any election of the Association, they shall have all other privileges and rights as those of full members. ... 4. REQUIREMENTS FOR MEMBERSHIP 1) Membership of the association shall be open to all Muslims over the age of sixteen (16) years provided the applicant: a) Believes in the finality of Prophet Muhammad (SAW) as the last and final prophet of Allah (SWT) and that no prophet or reformer of Islam succeeded him or ever will. b) Is not a full member of any other Islamic association or society in Australia. c) Believes in IAWSS constitution and will always work to uphold it. d) Is a citizen or Permanent Resident of Australia. 2) Associate membership of IAWSS shall be open to every Muslim over the age of eighteen (18) years and regardless of their being a member of other Islamic associations or societies. An Associate Member will not be entitled to vote on any IAWSS occasion. 3) Honorary membership may be conferred by the Executive Council on any distinguished Muslim who by his action the cause of Islam in Australia. 4) The executive council shall have the right to refuse membership to any person without giving any reason. 5) The Muslim Heads of the Diplomatic Corps resident in Australia may be considered as PATRONS to the Association subject to the approval of the executive council. ... 8. REGISTER OF MEMBERS 1) The public officer of the Association shall establish and maintain a register of members of the Association specifying the name and address of each person who is a member of the Association together with the date on which the person became a member and the category of membership. 2) The register of members shall be kept at the principal place of administration of the association and shall be open for inspection, free of charge, by any member of the association at any reasonable hour. 9. FEES, SUBSCRIPTIONS, ETC 1) The annual subscription for membership shall be ten dollars ($10) per member such other amount as the members may in General Meeting decide. 2) A member shall be non financial if his/her subscription is not paid within two months of the end of the financial year. 10. MEMBERS' LIABILITIES 1) The liability of a member of the Association to contribute towards the payment of the debts and liabilities of the Association or the cost, charges and expenses of the winding up of the Association is limited to the amount, if any unpaid by the member in respect of membership of the Association as required by rule 9. ... 12. POWERS, ETC, OF COMMITTEE 1) The committee shall be called the executive council of the Association and subject to the Act, the regulation and these rules and to any resolution passed by the Association in general meeting: a) Shall control and manage the affairs of the Association; b) May exercise all such functions as may be exercised by the Association other than those functions that are required by these rules to be exercised by a General Meeting of members of the Association; and c) Has power to perform all such things as appear to the Executive Council to be necessary or desirable for the proper management of the affairs of the Association. d) E.C, before entering into any litigation in regards with any matter/s affecting IAWSS and that could involve an expenditure of more than $100,000, shall not proceed to do so without the prior approval of a General Meeting (SGM or AGM) of IAWSS. ... 16. PROCEEDINGS OF EXECUTIVE COUNCIL 1) The executive council may meet together for the despatch of business, adjourn and otherwise appoint and regulate its meetings as it thinks fit. The President may at any time and the secretary on the requisition of any two (2) members of the Council summon a meeting of the Council. ... 5) Proceedings of the business transacted at any meeting shall be forthwith entered in the minute book and shall be confirmed at the succeeding meeting and signed by the president and so confirmed and signed, shall be conclusive evidence of the matters therein set forth." 5Although it is not expressly set out in the Association's Constitution, the parties proceeded on the basis that members could only be admitted to the Association by the Executive Council. In my opinion this is correct. It is implicit in the power contained in cl 12(1)(a) of the Constitution to control and manage the affairs of the Association and, further, in the power in cl 12(1)(b) to exercise such functions as may be exercised by the Association other than those required by the rules to be exercised by a General Meeting. It is also implicit in the Executive Council's power to refuse to admit persons to membership under cl 4(4) of the Constitution. 6There have been a number of previous disputes between various members of the Association as to the precise identity of those persons who had been admitted to membership. The disputes were resolved in earlier proceedings in the Equity Division of this Court: Islamic Association of Western Suburbs Sydney v Survery [2008] NSWSC 875. 7Following the delivery of judgment in that case on 26 August 2008, a meeting of the Executive Council was held on 1 November 2008 where concerns about membership were raised and a membership committee was appointed. The membership committee produced a report recommending procedures for membership. 8There was a further meeting of the Executive Council on 7 November 2008; the minutes record the following comments by Brother Sami: "New membership applications as attached list subject to scrutiny by the membership committee, resolution passed unanimously final decision after report received." 9It was in these circumstances that the meeting of 21 November 2008 took place. On the question of membership the minutes record the following: "DR. Kirmani: Membership list:- BR. Masud & BR Wajahat: Take [170] now later on [41] Dr Kirmani: Capped at 500-550 is ok and review??? Constitution. BR. SOHAIB - out of (440) members in old list only [300] are interested. BR Masud: People supported us, helped us, we must accept them. We gave commitment to them to BR, IRFAN, BR SAHFAQT & BR IFTEKHAR it should be unanimously not just voting. All agreed to this. Our Association Strong but ??? (unreadable) DR Kirmani: let us fulfil our promise first, review and take the leftover also. DR. AKRAM - Every Ex member must give their opinion None of us should be against of the decision BR Masud - They are our strength of AGM, etc We need them have to work hard do not have to worry in future elections member numbers. BR. Wajahat - Why not cap at [600] then we can take all of them. DR Survery; just (300) it took us from 1000.AM to 6.00 pm. When there is (600) will take much longer. BR Wajahat - AGM & election to be held on separate day * break for Ishah prayer at 9.30pm. BR. Ajaz we have to take immediate family members of EXC Committee also BR. Abbas. We should take all. BR Wajahat, BR Masud & BR Sohaib - ex committee family members are already included in this list. BR Wajahat - Decision made already we should not refuse BR Sami's list/membership forms also accepted So total (141) at 21/11/08, plus (10) Br Zahir, Br AKRAM (6) BR Ajaz (few) TOTAL: (160) plus (440) = (600) final. Resolution passed approved (175) & remaining (77) will be considered in March/April 2009 after review constitution. Moved by BR Masud Second BR Sohaib" 10It is to be noted that the minutes do not identify those persons said to have been admitted to membership either by name or by reference to any list. 11Evidence as to what occurred at the meeting of 21 November 2008 was given on behalf of the appellants by the first appellant, Mr Wajahat Ali Khan Rana, and by a Mr Zaheer Shah Khan. Evidence given by Mr Rana in his affidavit in chief affirmed 2 June 2012 was to the following effect: "6. Following the AGM there were more than 200 applications for membership of the IAWSS to be processed. The membership committee processed the applications and forwarded to the Executive Council for final approval. 7. On 21 November 2008 in the meeting of the Executive Council, the Executive Council resolved to approve 175 applications with the balance of 77 to be considered in early 2009. Exhibited hereto and marked with letter 'W4' is copy of the hand written minutes of EC meeting dated 21 November 2008. 8. I recall that at that meeting Mr Zaheer Shah Khan, at that time the secretary of the IAWSS recorded the names in the original minute book. This hand written list is annexed and marked 'L' in Mr Cheema's affidavit dated 28 April 2012. In fact the list of names from the minute reveals that about 186 applications were accepted and approved. 9. To the best of my recollection most of the membership application forms were properly filled. Mr Zaheer Shah Khan retained all forms of those persons who were accepted as members and he returned to me the forms of those who were to be admitted in early 2009." 12He elaborated on that evidence in an affidavit in reply affirmed 19 July 2012: "4. As the minutes record, the membership applications in November 2008 were supported by Mr. Cheema. After all at least 60 to 70 applications were of relatives and a circle of close friends of Mr. Cheema and his business partner Sohaib Malak. It was proposed that from some of the new families only two applications should be admitted at that stage. Accordingly the numbers were limited to 175. After the resolution was passed unanimously all the application forms were sorted out by the members of the Executive Council. What is not recorded in the minutes is that all the EC members dictated the names of approved members and Zaheer Shah Khan wrote a list. As a consequence of that process eventually he came up with the figure of 186 new members. The application forms of those 186 members were given to Zaheer Shah Khan and the remaining forms were given to me." 13It will be noted that in his first affidavit Mr Rana contended that 175 members were admitted to membership. However, in his second affidavit Mr Rana contended that 186 members were admitted to membership. 14In cross-examination Mr Rana stated that he counted the application forms. He then gave the following evidence as to what occurred at the meeting: "Q. What do you say the next stage was at that meeting? You counted the application forms what happened next? A. One-by-one all the forms were going through from me to the secretary and each and every IAWSS member were approving that. And it was - Zaheer Shah Khan was sitting there, he was the secretary, he was writing it down. Whatever the application form coming in to his hand and was approved he was writing it down there. Q. Let's take that in stages. You have a pile of about 250 applications forms? A. I did not apply, the people hand it over to me, as it was assigned by the IAWSS to me as one of the committee member. There was four committee members of membership committee. Q. Just listen to my question. During that meeting, towards the beginning, you have a bundle of applications forms? A. That's right. Q. About 250 in your hand? A. Yes. Q. You say you went through and counted them all? A. That's right. Q. And gave the exact number? A. That's right. Q. Did you then read out to the entire committee the first application form? A. No, I did not. Q. So what did you do, did you give the form to somebody else? A. No, it was most of the form belong to the IAWSS member, all their family, all their friends or whoever. I hand it over to them. That was all the people I spread the forms. I handed out approximately 80 forms with me. Q. So you have 250 forms initially? A. Mm-hmm. Q. Then you gave out, you say, 170 forms, about that? A. Yes, approximately, yes. Q. Who did you give the 170 forms to? A. All the IAWSS members. Q. So, how did you go through that process, did you hand them out like a pack of cards, one to him, one to him, one to him? A. No, because we know whose form belongs to whom. Aijaz Khan brought those names and the forms. We give it to Aijaz Khan. Mr Cheema brought 60 to 70 people. We gave it to him. Shoaib Malik brought a number of people as well. Sami Quazi had ten, fifteen people on his side. So I give it to them. We live in a very small community. Q. You have about 250, you went through them and gave them to the person you thought they were associated with? A. Yeah. They asked for it. They were sitting there saying, that's my relative, that's my friend. We were sitting on a table in a meeting. Q. Did you announce the name of the individual person- A. Yes, that's right. Mostly I knew who gave it to me and then whoever not, they said that belongs to me, give it to me. Q. So you then gave all of the applications, but you've got about I think you said about 80? A. Approximately, yes. Q. Then after that I think you said that you went through each applicant one-by-one, is that right? A. Not me, the IAWSS does that procedure, not me who did it. Q. Who on the executive committee went through each one individually? A. Who, what do you mean by that? Q. You've each got your titles. How does the process then start? A. I think it started with Mr Cheema. Dr Kirmani asked for Mr Cheema to start it and he started one. Then he went to each in individuals. Q. It was Mr Cheema who started, did Mr Cheema then go through each form and say I've got application form from Mr So and so or Mrs So and so, and announce the names, is that how it was? A. Yes. Q. There was then debate between the Executive Council with each member? A. Not debate there was a bit of a discussion. They wanted to know who these people are or what they have done for the Association in regards to the helping the Court case in the past which we just came out of. And relatives as well, because majority of them they were relative to that the Executive Council committee members, or they were close family friends. Q. As you went through Mr Cheema's, what was the result of his? A. I mean, it was a general thing. It went through Mr Cheema then Sami Quazi then people in my hand, and all that. It just not went one-by-one and says all right - the whole procedure, do you want me to quickly explain that so it is easier? Basically what happens is that everyone is holding the papers in their hand and then one application went forward, and they says, okay, we don't have any problem. Objection will come here. We'll put this one in the middle. We'll discuss this later on. Now we can discuss this. So there was a basically so much times read we backward and forward we move on the forms. At one stage we say, what we have to do is revisit them and we should not take more than two from one family. Because there were more than members of four people from one family. We have to revisit the pile and took the two forms out of that family, so we can spread the membership across the broader community. So instead have of having 30 families, for example, just for example, we had thirty family and four each, that became 120. So why don't we have 100 family and each from every family. I am just giving an example, that is not the right thing. That means it will spread to the 100 family. The broader community will be involved in the Association. Because this belongs to Association, the community. This is how it had worked. Q. So you've handed out the forms to the individuals, then one-by-one somebody would mention an applicant and say who they were and either they say, yes, it is approved or go to the middle for discussion later? A. That's right. Q. Part-way through that process, somebody said, why don't we limit it two applications per family? A. Yeah, some of the family, not every family. Q. Then you went back and started the process again- A. No not start the process again. We went this family, four people from this family, we'll take only two husband and wife, take the children out from there. Q. I think you said you had to revisit the ones that it already gone through? A. Revisit. If you have a full pile of 20 or 50 forms, of course you have to go through the forms to take two of them out from there or five of them out from there. Q. At the end of the process you had a pile of forms that had been approved and forms that had not been approved, is that correct? A. At the end we had all the forms approved and at one stage we stopped, all right the rest - 175 then was calculated to approve and 77 said they are approved as well, they approve that, but say they will become a member after the foundation member meets in April. That was the ruling by Dr Kirmani. ... Q. Do you say that after the approvals had been made for the 175, do you say that anybody made a list of that 175? A. Actually, then right there, when the forms were handed over to the secretary he was writing them down. Q. So the secretary wrote down- A. That's right. Q. -the names of every person who the Executive Council had approved? A. That's right. Q. So when you left the meeting, when the meeting came to finish, your evidence is that all of the new members had been written down in a list? A. Yeah, he was writing it down and that was the conclusion as well. Q. So that list then should be, should it not, 175 people? A. Yes. But during the process- ... HIS HONOUR Q. Mr Rana, did you not distinguish between the 175 and the remaining 77 in your evidence earlier? A. Yes, your Honour. Recommendation from the membership committee was all members, all applications should be approved. But at one stage when we were going through the process, Dr Kirmani stopped says, okay, that's it. We stop here and the rest of the members - which I recall was the 77 applicants - will become member of the Association in April 2009 after the amendment. So he did not say, I am going to accept them. What he said is we have to stop it because that is big numbers we already have and all these members will become a member in April 2009. CHESHIRE Q. So is it then your evidence that partway through the process once you got to 175 Dr Kirmani said, that's enough, we've got to 175? A. He says, 'we should stop somewhere here', yes. Q. But you stopped there? A. Not me. Q. The whole Executive Council stopped? A. That's right. What happened is, once we stopped the procedure went on again, okay, went on. There's okay, Dr Kirmani please put one more, two more from here and there that's how it was happening. Q. So did Dr Kirmani we should stop now we have 175? A. He did, yes? Q. Then you say in fact other people proposed a few extras, is that right? A. That's right. Q. Were they accepted as well? A. I think so. ... Q. Just answer my questions. If it is not in the minutes and you're dissatisfied with the minutes, why then did you not put it in your affidavit that in 2009 you mentioned the other members and what's happening with them? A. I don't know, but it may be in the minutes, because we never get a copy of the minutes so we don't know that. Q. So your evidence then is at the end of the meeting on 21 November there was a list which was the list of 175 members, is that right? A. 175 members? Q. Yes. The 175 people approved. A. That was approved - I haven't seen the list because I was sitting far end on the table and Zaheer Shah Khan the secretary was sitting next to Mr Kirmani, two or three chairs away from him. Q. Your understanding was that he had written down a list? A. Yes, he was writing it down. Q. And you understood that was a list of all the 175 members who had been approved? A. Yes. ... HIS HONOUR Q. Mr Rana, would you like to elaborate you were about to say something? A. Actually, your Honour, the meeting was progressing. As we can see there was 141 in total in here. And then the discussion kept on going, the forms keep on coming, and if you see the next two lines the number has increased from 141 to 175. Then as I mentioned Dr Kirmani's words that the remaining will become member in 2009, April. There was a lot of discussion - if you go through these minutes, initially there were few and they kept on adding as IAWSS was discussing and they were coming to conclusion, that was a conclusion at the end. At Mr Cheshire mentioning it was 186 numbers; 186 numbers that was the result of those conversations and the conclusions that people say, okay, if you have done that, why don't you put one of my cousin or something like. That's how it exactly happened. CHESHIRE Q. Mr Rana, just to be clear on that. The two lines the three lines which we discussed in which I read to you which have the total 141, et cetera, those two lines? A. Yep. Q. Where we started with Brother Sahail, remember those three lines that I read to you. Those words you call it the discussions about you have one, I have one, I've got a few? A. No, I didn't say that. It kept on going. Q. At the end of the process there was a resolution? A. That's correct. Q. The resolution at the end of those process was for 175? A. That's correct. Q. So there was never a resolution for 186? A. No, it wasn't. But as I say he committee was continuing after the resolution as well, and all the IAWSS members they were just trying to have whatever they have possible, like, the friends or their close to people try to get in. So that's how the 186 happened. HIS HONOUR Q. Mr Rana, if after the 175 was approved, a few more cousins and friends applications were considered, was there a resolution? A. No, it wasn't, your Honour. No, it wasn't. I'm telling you my understanding how it become 186. I am not aware of 186 then. The resolution was 175. That was my understanding as well. But what I'm trying to explain to Mr Cheshire is, this may have happened because the meeting was carried on." 15In an affidavit affirmed on 1 May 2012, Mr Zaheer Khan gave the following evidence: "4. To the best of my recollection Aijaz Khan being treasurer of the association was in charge and coordinator of the Membership Council. Almost 250 persons had applied for membership of the association. On or about 21 November the Executive Council meeting took place in which between 160 to 186 applications were approved for membership. It was decided by the Executive Council that the remaining applications will be approved in April 2009. Almost all the Executive Council members were involved in submitting the membership application forms of their own circle of friends and relatives. The membership application forms were given to me by the membership Committee after completing the procedure of due diligence during an executive council meeting of 21 November 2008, in which around 186 applicants were admitted as members." 16In a subsequent affidavit affirmed on 18 July 2012, he gave the following additional evidence: "7. The membership committee presented the application forms after due diligence, at the EC meeting of 21 November 2008. Almost each applicant was discussed, and it was proposed by EC members to only take two members from each applicant family and remaining application will be considered in Mar/Apr 2009. In fact, the minutes record accurately that Mr Cheema supported the majority of the membership applications and after lot of discussion he was the person that proposed the resolution for the approval of 175 applicants. The resolution was seconded by Sohaib Malak, a business partner of Mr Cheema and member of the EC. 8. Although not recorded in the minutes, after the resolution, a handwritten list of memberships was prepared by me. The list is the handwritten list of 186 members referred to in paragraph 26 & 27 of Mr Cheema's affidavit dated 11 Jul 2012. this is a copy of the true record handed over by me to Mr Cheema on 28 February 2010. The list has many names crossed out. This was because given the decision not to approve more than two members of any one family, I was told by the EC members including Dr Kirmani, the president, to cross out some names, but to add others in their place. By going through this procedure, the membership list was created by me which reached to the 186 members. Thus, although the resolution was for 175 members to be approved, in fact 186 members were accepted by the Executive Council through that process. The remaining membership application forms were handed over to Mr Wajahat Rana for reconsideration in Mar/Apr 2009, as Mr Wajahat Rana was most active member of EC and membership committee." 17The list referred to was a document headed "New applications for IAWSS membership recd. 21/11/08". It lists 186 names with the expression "ok" alongside most of them. However, some names were crossed out and other names written over them. In some cases the names of the parties crossed out were added back at the end of the list. 18It should be noted that Mr Zaheer Khan's evidence in his affidavit of 18 July 2012 was that he prepared the list after the resolution. 19In his evidence in chief at the trial Mr Zaheer Khan gave the following additional evidence concerning the list: "Q. Underneath that there's a number of remarks next to each person whose listed and a lot of the time is simply 'ditto'? A. Yeah. Q. And there's an identification in some cases of 'paid' and '55'? A. Mm hmm. Q. Is that your writing? A. Yes. Q. Then to the right hand side there's another column that says, 'okay'. Do you see that? A. Yes, it's okay. But I'm not sure whether I had written that. Q Do you know what the okay means at all? A. Let me - must be application is proper. Q. Was it something that you wrote on the form at the time that you wrote the list? A. I just cross the applications, 'paid' and signed it (witness indicated). I enter into that list. Q. Some of the people on the list or quite a lot of them have highlighting through them? A. Yeah, that's it. Q. Do you see that? A. Yes. It's forms are there. Q Did you do that? A. Yes. Q. When did you do that? A. This was done as, as they were paying the fees and I do cross out (witness indicated)." 20In cross-examination he described what occurred at the meeting of 21 November 2008 in the following terms: "Q. So, at the beginning of the meeting Mr Rana had a big bundle of forms? A. Right. Q. Is that right? A. That's correct. Q. It's right, isn't it, that Mr Rana effectively presented those to the meeting and said that he had some forms to be considered, that's right isn't it? A. Not himself. Then it was passed to the other members who brought the forms, all gave it to me, because Aijaz - Masud, Aijaz and Nizahali, Cheema the membership committee. In the membership committee. Q. So, you say that Mr Rana had all of them? A. In the first, initially when, when the argument for the numbers was discussed, then they say, okay, these are not all his, so he transferred, gave back to Cheema, Shoaib, Nizahali. Q. Isn't it the fact of the case that there was a conversation between Dr Kirmani and Mr Rana about how many forms there were and Dr Kirmani said to Mr Rana, 'It looks as if there were more than 200 forms'? A. Yes, there was one. Q. Isn't it that Dr Kirmani said, 'It looks as if there are more than 200 forms' and what Dr Kirmani then suggested is that all of the forms should be considered by the membership committee? A. That's correct. Q. And so, isn't it the fact of the case that Dr Kirmani at the time of the meeting said, 'All of the forms should be considered by the membership committee'? A. Mm hmm. Q. And there was then no vote at that particular meeting as to accepting any of the individuals applicants, that's right isn't it? A. It was all proposed, approved for 175 people, applications. It's here in my minutes. Q. Don't worry about the minutes. Can you tell me, do you have a specific recollection of the resolution? Can you remember precisely what was said? A. There was about, it was Cheema and Wajahat take 170 now and the remaining 41 later. Q. Who said that? A. Brother Cheema and Wajahat." 21Shortly after in his cross-examination, Mr Zaheer Khan changed his evidence as to the number of members approved from 170 to 175: "Q. Do you remember exactly which numbers were used? A. What do you mean used? How many became member? Q. No. When there was a proposal put to the committee, do you remember the exact numbers that was put to the committee? A. It's about, between 230 and 250. Q. That's the number of application forms? A. That's correct, yeah. Q. When the committee came to make a decision about what to do, do you remember? A. 175. Q. Was it 175 exactly? A. 175. Q. Do you remember that number being used, 175? A. Yes." 22He then gave further evidence as to the process which took place at the meeting: "Q. And at the time the number of 175 was used they hadn't actually identified who were going to be the 175, that's right isn't it? A. (No verbal answer). Q. Is that right? A. This was a job of the membership committee. Q. Yes. And that was going to be done after the meeting? A. Because this was going on from November. He collected the forms and finally on the 21st they presented it. Q. So, what I just want to clarify is, is it right that at the meeting what you say happened is that the committee decided we will take 175 members? A. Mm hmm. Q. And it was then for the membership committee after 21 November to work out who were going to be the 175? A. No. I think this was from first, first November meetings. The committee was formed. The forms were being I think collected. So, they had 3/ 4 weeks, 3 weeks. And the 21st they were presented. Q. But it was Mr Rana who presented the forms, wasn't it? A. He had the collection full. But when they, when they were asked, 'Is all this belongs to you?' He said, 'No. It's only few belongs to me. The supporters. The rest belongs to Cheema, Shoaib, Wajahat, Malik and Nizahali. Q. But he had about 240 forms? A. Yeah, between 230 and 250. Q. And the committee in that meeting decided, as you say, to take 175 new members, yes? A. That's correct. Q. In that meeting the committee didn't decide who were going to be the 175, did it? A. There were the forms there already in front. Q. But you had between 230 and 250 application forms, didn't you? A. They were going through. The names were there. That's what's written. All they were. Q. You say the names were there? A. Yeah. Q. That's what was written, did you say? A. That's, that's what I was writing. The names were given the forms and I was filling up straightaway. Q. So, you say the stage was, the forms were handed out to the individuals? A. Mm, individuals. Q. Then you went through every application form? A. Not every. Just names were given there. Names written one by one, two, three, four, all that (witness indicated). Q. You say you wrote- A. That's it. Q. -every name? A. That's correct. Q. Then at that stage somebody said we should take 175, is that correct? A. No. 175 was initially agreed. Then started (witness indicated). HIS HONOUR Q. And then started? A. Started writing. CHESHIRE Q. And so, you say you didn't start writing any names until after- A. That's correct. Q. -the resolution about 175? A. Yes, that's correct. Q. Is that right? A. That's correct. Q. Do you say that before the meeting finished you had completed your list of 186, is that right, or what that- A. Almost complete. Q. Almost complete? A. Almost completed, yep. Q. So, how far had you got then before the end of the meeting? A. I think, I think I did close to that. Yep. Q. But not all of them A. Not, just the last, last few." 23Mr Zaheer Khan then gave the following evidence about the names which were crossed out: "Q. What about, for instance, if you look on page 3 of that list, do you see between the numbers or the fourth one down on the page there's a block about six- A. Yes. Q. -where people are crossed out and other names written? A. Yes. It was also discussed, your Honour, this one, because if one family member there's about three or four and one other family member, both supported, there were none, so they said we might take one or two out from there and take these people. That's exactly happened. Q. And did you do that, those crossings out? A. That's correct. Q. Sorry? A. Yes. Q. And you did the crossings out after the meeting, is that right? A. In minutes then and there itself. Q. In the meeting? A. Yes. Q. But you say that you hadn't finished the meeting? A. Not completely I finished, but name was added and crossed out and added the next place." 24He gave the following additional evidence in cross-examination: "Q. Did you ever show the list to the committee or did you take it away to finish it? A. No, I was preparing. It's with me. Q. Sorry? A. It was with me. The committee. And as I received the fee, the names were passed to the treasurer and he was maintaining the final lists. Q. During the meeting on 21 November, it's right, isn't it, that after you started writing the list out you didn't show it to the committee again, did you, for the committee to approve your list during that meeting? A. No, I didn't show because it was not fully completed. Because the, quite a few people hadn't pay the fees and all that stuff. So, that's the reasons. Q. Isn't really what happened that the committee, if the committee vote - sorry, if the committee said that it would take 175 people it then left it to you or you were then left to draw up a list after the meeting and that's what occurred, isn't it? A. After the meeting, no. Which list? This is the only list I've got (witness indicated). Q. During the meeting there may have been approval for 175, the number of 175? A. That's correct, yeah. Q. But the committee didn't identify which individuals were to go to make up the 175? A. Those the committee member, they said members were three or four from one family, that one or two will be taken out, give the other people there. So, all applications were approved in the sense and then it was written out, the crossed out and add their name (witness indicated). ... Q. I want to suggest to you then that with the other business that was considered and discussed in the meeting there simply would not have been time for the committee to go through all of the application forms and for you to write out a list of anywhere close to 186 people? A. I can assure you I can write it. ... Q. Why when the meeting was drawing to a close did you not say: 'Hang on a minute, I have nearly finished the list and you can all see it and approve it'? A. The executive members come up with that idea. Q. So you say the meeting just finished while you were in the middle of- A. No, I completed. Q. Sorry, do you say you had completed?A. I had completed. Q. Mr Khan, I asked you this a little while ago. You gave clear evidence that you had nearly finished it? A. Yes. Q. But you said you had not finished it? A. Nearly finished it is correct. ... Q. Is it your evidence, your sworn evidence, that you have a clear recollection, you have a recollection that at the end of the meeting you had written 175 names down? A. Yes, sir. Q. That is your evidence? A. Yes. Q. If that is right and the committee had said 175? A. Hm mmm Q. Why did you not stop then? A. Because again that's we crossed the names out, added to that and none of them objected and they were writing, and I was writing. Q. Did you inform the committee at that stage that you had already got to the 175? A. Yes, yes. Q. You said 'we've got to the 175'? A. Yes. Q. 'And I've still got a few more to do'? A. Yes. Q. You told the committee that, did you? A. Yes. Q. Is that recorded in the minutes?A. No, I don't think so. No. Q. It is not recorded in the minutes, Mr Khan, because it didn't happen. That's right, isn't it? A. It's not there." 25Finally, Mr Zaheer Khan stated that he had a clear recollection of completing the list at the meeting. 26Mr Zaheer Khan also gave the following additional evidence in cross-examination: "Q. With the forms, Mr Kahn, as the committee went through various forms were they handed back to you individually? A. Yes, it's all coming through the executive members. Some had 20, some had ten, some had six, like that. ... Q. You say that there were between 230 and 250 forms? A. Yes. Q. Did you count them? A. I put the numbers in there, yes. Q. You did count them? A. Yes. Q. You counted them during the meeting? A. I had a pen marking the numbers. Q. And was the process, that as a person, effectively, was mentioned by the member what they did then was pass the application form to you? A. That's right. Q. And you used the application form to copy the name down? A. That's correct. Q. Because, presumably, a lot of these people you didn't know? A. Personally, I didn't. As I said, I see them in congregation and that's it. Q. There would have been a lot of people you wouldn't have known how to spell the names? A. How to spell their names? Q. Yes. You would need to see them written down to copy the name down? A. Yes, of course, like this (indicated). Q. And the address as well? A. Yes. Q. So, therefore, the process was that somebody mentioned a name and then they said 'yes' or everybody indicated, yes? A. This was bundle belonged, say, for example Cheema, this bundle belonged to me, this bundle belongs to someone else. All there and entered like that. Q. Do you say you didn't go through them individually. Were they all just handed to you as a big bundle? A. Bundle was there with one person and then they say, right, this all belongs to me. The person has given says, right, this is your 25, that's your 10, that's your 15. That's your 5, like that. Q. Then they handed the bundle of forms to you? A. That's correct, with money attached - fee attached. Q. You then took the details from that form? A. That's correct. Q. To copy on to here? A. That's correct. Q. That meant that all of the names on here came from applications forms, didn't they? A. Definitely." 27The evidence given on behalf of the respondents was somewhat different. Mr Cheema's affidavit sworn 11 July 2012 relevantly was to the following effect: "8 A meeting of the Executive Council of the Association took place on 21 November 2008. I attended that meeting. 9 During that meeting, Mr. Rana said to the President Dr. Kirmani: 'I've got some application forms for membership.' Dr Kirmani said: 'OK where are they?' 10 Mr. Rana then presented a bundle of them to the Secretary Zaheer Khan and they started reading the names out loud from the forms. Dr Akram Choudhury also started checking the forms. 11 After five or six names had been read out, Dr. Kirmani said to Zaheer Khan: 'There look like more than 200 forms.' 12 Dr. Kirmani then said to Mr. Rana: 'This is not what we had agreed upon. We agreed on about 40 members. We will take your 40 members.' Mr. Rana said: 'But the rest of them are the spouses.' Dr Kirmani said: 'Some people should sit down and check the forms.' 13. Someone, although I cannot now remember who, then suggested: 'The membership committee should do their job and review the applications.' 14 A membership committee had previously been set up at the Executive Committee meeting on 1 November 2008, consisting of Mr. Rana, Aijaz Khan, Nizam Ali and I. I understood this suggestion to refer to that committee. 15. Everyone appeared to agree with that proposal in the sense that they indicated their consent by nodding their heads, saying 'yes' or in some other similar way. Nobody expressed any dissent or disagreement with that suggestion and there was no further debate about the issue of membership at that meeting." 28In cross-examination Mr Cheema said that there were a number of candidates recommended for membership by various persons and he did not express opposition to any of them. He also gave the following further evidence concerning the meeting and the minutes of the meeting: "Q. Are you suggesting that in the course of that meeting the number of applications brought by you was not mentioned at all? A. No. Q. No. Can I suggest to you in respect of each person who brought applications there was a discussion about - sorry, who recommended applicants, there was a discussion about the number of applications that they brought, that they recommended? A. No. Q. You moved from that discussion about acceptance in principle of members to going through the forms one by one, is that correct? A. Actually, can I explain? Q. Is that correct, Mr Cheema, or not? A. No, there was no discussion. It was handed to the secretary and president asked him, you know, 'How many?' Q. A moment ago- HIS HONOUR Q. Just a moment. The president asked him to do what? A. Your Honour, when the secretary started counting the forms, there was another senior member, Dr Akram. Q. Dr Akram? A. Akram. He was reading the names and they both, you know, like Dr Akram was quite upset because people don't even know who they are. And Dr Kirmani said that, 'How many application forms are there?' And Zaheer Shah Khan said, 'Over 200'. And they said, we don't agreed on that 200. Q. Who said that? A. Dr Kirmani, the president at that time. And he said to Wajahat Rana, 'We agreed on only 40'. And what he said, 'Just of them, they're the spouses'. So, I mean, that's where they asked, the job was given to the committee to go through those forms. Q. That's what you have said in your affidavit I think? A. Yes. Q. You said that already in your affidavit? A. Yes, your Honour. PICKLES Q. Consistent with the practice at that time, Mr Cheema, do you recall whether at the next meeting of the association after 21 November 2008 the minutes of the meeting of 21 November 2008 were read? A. Yeah. Q. And do you know whether or not you saw the minutes signed? A. I, actually, I know they're signed. Q. You know they're signed? A Now that I- Q. You know the signatures borne at the bottom of that document comprises the president at the time, Dr Kirmani, and the secretary, Zaheer Shah Khan? A. They seem to be, yeah. Q. And the minutes also show, do they not, that they were proposed by Brother Akram and Brother Shoaib? A. I can't recall that, no. Q. You were at the following meeting, were you not? A. Yeah, I think so. Yep. Q. And if the minutes that had been read out did not reflect what had happened at the previous meeting you would have said so? A. Yes. Q. And you didn't say so, did you? A. Yeah, because may be I didn't hear it. Q. You were still sitting around the table, were you not, at the meeting on 21 November 2008 while the application forms were being gone through and Mr Zaheer Shah Khan was writing a list? A. He was going through only about ten, may be. Something like that. And then after that, president stopped him. And there was no handwritten list produced or written over there. ... Q. You saw a list being written, did you not? A. No, I didn't see him writing list. Q. You didn't see him write a list at all? A. No. Q. Nothing? A. Nothing. Q. A moment ago you said you did see him start to write a list and Dr Kirmani stopped him? A. No. I'm sorry. Actually, that's not what he said. He started counting, reading from the forms names, and he was handing one by one to Dr Akram, who was sitting right next to the president (witness indicated). So, he was reading the name from there. So, possible he cannot write, you know. Like, I didn't see him writing at all on that list. That list was never in the meeting. That's my-" 29Dr Shujaullah Kirmani who presided at the Executive Council meeting gave evidence to the following effect in his affidavit sworn 28 April 2012: "4. I presided over the meeting of the executive committee in November 2008. At the meeting Mr Rana presented to the meeting a bundle of documents and said 'these are about 200 application forms of people who want to become members of the association'. I said to him and the meeting 'Why are there so many' 'It was agreed between us before the election that only the 40 applications will be accepted which were refused by the former president Dr Khan.' Rana said 'these applications include these 40 persons and their spouses and some other applicants'. I said 'I will not accept this and I propose we form a committee of three executive committee members namely Mr Aijaz Khan, Mr Wajahat Rana and Mr Masud Cheema to go through each application and report back to the executive committee'. This proposal was accepted unanimously by the executive committee. At that meeting I do not recall that any resolutions were passed admitting any new applicants to membership of the association. 5. It is the practice of the association that where any new members are approved by the executive committee a resolution would be passed to that effect and the names of the members would be noted on the minutes." 30In cross-examination Dr Kirmani conceded he might have been referring to an earlier meeting of the Executive Council. 31It was in that factual context that the primary judge reached his conclusions.