MOHAMED IBRAHIM MOHAMMED MAFAZ VS MOHAMED ALAVI NAWAZ GAFOOR

• Case Number: 2023SCOA06C2022Y
• Citation: 2023SCOA06C2022Y
• Date: 16 May 2023
• Court: Court of Appeal (Sri Lanka)
• Type of Document: Unreported judgment

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MOHAMED IBRAHIM MOHAMMED MAFAZ

VS

MOHAMED ALAVI NAWAZ GAFOOR

Court of Appeal Case No: CA/LTA/06/2022
Wakfs Tribunal Case No: WT/268/1019

In the matter of an application made under and in terms of section 9E (1) of the Muslim Mosques and Charitable Trusts or Wakfs Act No.51 of 1956 as amended.

1. Mohamed Ibrahim Mohammed Mafaz
No. 40/10, King Lane, Pannawa, Kobeigane.

2. Mohammed Jabir Mohammed Maznavi
No.51/1, Beira Road, Colombo 12.

3. Pakeerdeen Sahib No.427/D,
Kanamoolai, Madurankuliya.

4. Abdul Raseedu Muhammadu Manas No.22,
Western Solden Road, Puttalam.

5. Mohammed Mohamed Ashraf No.32,
Temple Avenue, Maradana, Colombo 10.

PLAINTIFFS

-Vs-

1. Mohamed Alavi Nawaz Gafoor
No.57, Green Path,
Colombo 07.

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2. Majid Abdul Carder No.85,
Barnes Place, Colombo 07.

3. Mohamed Riyaz Mohamed Hamza No.11,
Ruhunukala Mawatha, Colombo 08.

And Presently
Puisne Judge - High Court of Fiji.
Registrar of the High Court of Fiji, Fiji.

4. Ahmed Jazeem Mohamed Arif No.171/7A,
Bauddhaloka Mawatha, Colombo 04.

5. Mohamed Zubair Nehru Caffoor
No.10/16A, Lake Drive, Lake Drive Enclave, Colombo 08.

6. Mohamed Iqbal Faiz Abdul Caffoor No.31,
W.A.D. Ramanayake Mawatha,
Colombo 02.

7. Farzad Hussain Caffoor No.05,
Flower Road, Colombo 07.

8. Azmeth Hussain Caffoor
No.114B, Horton Place,
Colombo 07.

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9. Mohamed Thalib Hussain Caffoor
No.81, Horton Place, Colombo 07.

10.Mohamed Uvais Mohamed Hamza No.26/9,
Sir Marcus Fernando Mawatha,
Colombo 07.

Trustees of the Trust established by the
Deed/indenture of Trust bearing No.2125 dated 1935.11.21
attested by John Wilson of Colombo Notary Public.

DEFENDANTS

AND NOW BETWEEN

In the matter of an application for Leave
to Appeal under and in terms of section
754 (2) read with section 757 of the Civil Procedure
Code and section 55A of the Muslim Mosques
and Charitable Trusts or Wakfs Act, No.51 of 1956 as
amended against the Order of the Wakfs Tribunal dated 03.09.2022

1. Majid Abdul Carder No.85,
Barnes Place, Colombo 07.

2. Mohamed Riyaz Mohamed Hamza
No.11, Ruhunukala Mawatha,
Colombo 08.

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And Presently
Puisne Judge - High Court of Fiji.
Registrar of the High Court of Fiji, Fiji.

By his Attorney -
Mohamed Uvais Mohamed Hamza No.26/9,
Sir Marcus Fernando Mawatha, Colombo 07.

3. Mohamed Iqbal Faiz Abdul Caffoor No.31,
W.A.D. Ramanayake Mawatha, Colombo 02.

4. Farzad Hussain Caffoor No.05,
Flower Road, Colombo 07.

5. Azmeth Hussain Caffoor No.114B,
Horton Place, Colombo 07.

6. Mohamed Thalib Hassan Caffoor
No.81, Horton Place, Colombo 07.

By his Attorney -
Fathima Inneth Sherin Caffoor No.10/16A,
Lake Drive, Lake Drive Enclave, Colombo 08.

7. Mohamed uvais Mohamed Hamza No.26/9,
Sir Marcus Fernando Mawatha,Colombo 07.

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8. Sithy Shihara Caffoor No.114B,
Horton Place, Colombo 07.

9. Mohamed Hejazi Thahir
No.117, Hampden Lane, Wellawatte, Colombo 06.

10. Mohamed Hussain Sulaiman
No. 61, Ananda Coomeraswamy
Mawatha, Colombo 03.

11. Mohamed Abdul Nasser Hammad
No.05, Flower Road, Colombo 07.

12. Jamila Hanim Abdul Carder No.85,
Barnes Place, Colombo 07.

Trustees of Trust established by the
Deed/indenture of Trust bearing No.
2125 dated 1935.11.21 attested by John
Wilson of Colombo, Notary Public.

DEFENDANT - PETITIONERS

- Vs -

1. Mohamed Ibrahim Mohamed Mafaz
No.40/10, King Lane, Pannawa,
Kobeigane.

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2. Mohamed Jabir Mohamed maznavi
No.51/1, Beira Road, Colombo 12.

3. Pakeerdeen Shahib No.427/D,
kanamoolai, madurankuliya.

4. Abdul Raseedu Muhammadu Manas No.22,
Western Solden Road, Puttalam.

5. Mohamed Mohammed Ashraf No.32,
Temple Avenue, Maradana, Colombo 10.

PLAINTIFF - RESPONDENTS

6. Mohamed Alavi Nawaz Gafoor
No.57, Green Path, Colombo 07.

7. Mohamed Zubair Nehru Caffoor
No.10/16A, Lake Drive, Lake Drive Enclave, Colombo 08.

8. Ahmed Jazeem Mohamed Arif No.171/7A,
Bauddhaloka Mawatha, Colombo 04.

DEFENDANT - RESPONDENTS

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Before: C.P. Kirtisinghe - J.
Sampath K.B. Wijeratne - J.

Counsel: Suren Gnanaraj with Shamalle De Silva instructed by Sanath Wijewardane for the Petitioners.

Hijaz Hisbullah with M.A. Zard for the 2nd, 3rd and 4th Plaintiffs- Respondents.

Inquiry on: 16.02.2023

Decided On: 16.05.2023

C. P. Kirtisinghe - J

When this matter was taken up for supporting the Learned Counsel for the 2nd to 4th Plaintiffs-Respondents took up the following preliminary objections to the maintainability of this application.

1. Third parties have been added to the caption. The addition of 8th-12th Petitioners as parties to the petition is contrary to the provisions of section 754 (2) of the Civil Procedure Code as they were not parties before the Wakfs Tribunal.

2. The Petitioners have not complied with Rule 3 (1) read with Rule 3 (15) of the Court of Appeal Appellate Procedure Rules of 1990 and the Petitioners have failed to tender necessary documents to prove the appointments of 8th-12th Petitioners as trustees of the subject trust.

3. Some of the averments in the petition contain facts which could not be pleaded in the petition in terms of section 758 of the Civil Procedure Code.

4. The Petitioners have suppressed material facts and/or misrepresented material facts.

Both parties were permitted to file written submissions regarding those preliminary objections and I have perused those written submissions.

I will take up the 4th Objection first. The paragraph 26 of the petition states as follows;

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"Without prejudice to the above preliminary objections and the contention of bias, the parties framed admissions and issues on 19.03.2022 and issues No. 26 and 27 were raised by the Petitioners as preliminary issues of law......."

The Learned Counsel for the Plaintiffs-Respondents submitted that the assertion that the Petitioners raised issues and recorded admissions without prejudice to their objection on bias is futile. The Wakfs Tribunal had rejected the allegation of bias and that order was not canvased before this court. The Petitioners cannot raise that objection again. The Learned Counsel submitted that nowhere in the proceedings before the Wakfs Tribunal was it recorded that the Petitioners had proceeded to record that the admissions and issues without prejudice to the above preliminary objections and contention of bias. That is not a suppression of a material fact or a misrepresentation but a legal position taken up by the Petitioners in their petition. The allege misrepresentation or the suppression should relate to a material fact. A mere misrepresentation or a suppression is not sufficient. A material fact is something which is material for the Judge to decide a case. Here, there is no such material fact and that objection must fail.

I will proceed to consider the 3rd objection next. It was the submission of the Learned Counsel for the Plaintiffs-Respondents that a party is required to set out a plain and concise statement of the grounds of objections under section 758(1)(d) of the Civil Procedure Code and therefore, there is no necessity for background information. Therefore, containing matters that are not relevant to the order and which are factual and evidential are violative of section 758(1)(d) of the Civil Procedure Code.

Section 758(1) of the Civil Procedure Code reads as follows;

758(1) The Petition of appeal shall be distinctly written upon good and suitable paper, and shall contain the following particulars:-

(a) the name of the court in which the case is pending;
(b) the names of the parties to the action;
(c) the names of the appellant and of the respondent;
(d) the address to the Court of Appeal;

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(e) a plain and concise statement of the grounds of objection to the judgement, decree, or order appealed against - such statement to be set forth in duly numbered paragraphs;
(f) a demand of the form of relief claimed.

Section 759(1) reads as follows;

"If the petition of appeal is not drawn up in the manner in the manner in the last preceding section prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended, within a time to be fixed by the court; or be amended then and there. When the court rejects under this section any petition of appeal, it shall record the reasons of such rejection. And when any petition of appeal is amended under this section, the Judge, or...