Dignified Consent Judgment refused to Defendants - Appeal filed! - Aga Khan Copyright Lawsuit -2011-02-08
The Aga Khan Copyright judgment in January was the first Intellectual Property judgment of 2011. Attempts were made by defendants to bring back to the table the ideas put forth by the Imam in October 2010.
Defendants were told categorically by Gray that their input about aligning his drafted Order with what the Aga Khan said on October 15th was not welcome, no discussion would happen, and that they could make any comments to the Judge Himself.
If left unchanged, Gray's draft order paves the path to prolonged additional discoveries and witch-hunts of any person, who, like the Defendant Jiwa, had only given a few copies of the Golden Edition to some family or friends, and it allows SS to continue suing Murids of the Imam in Imam's name for "loss of profits" and "damages", which is obviously against Imam's wish.
As a result,Tajdin and Jiwa both filed Notices of Appeal on Monday February 7, 2011.
Notice of Appeal by Alnaz Jiwa 2011-02-07
Notice of Appeal by Nagib Tajdin 2011-02-07
The 'Plaintiff' filed a Motion for Judgment on Tuesday February 8, 2011.
Motion for Judgment by 'plaintiff' 2011-02-11
Defendants File Appeal, 'Plaintiff' Files New Motion for Judgment - What Happened?
What discussions have happened since the Summary judgment proceedings in December or since the Order in January?
Answer: None. In fact, since the beginning of the case, no contact or discussions have happened with any leader outside of the official legal proceedings and occasional formal communication by the Lawyer. Before the Lawsuit, Nagib received forged letters and threats from Sachedina, and Alnaz was never contacted by anyone.
What steps have defendants taken since the Judgment?
In recent days, the defendants tried to avoid going to appeal. By his letter to Bryan Gray, Nagib Tajdin urged Gray to come up with a consent judgement in line with Imam's Instructions / guidance of 15th October, Nagib also suggested the terms of this consent judgement in line with these instructions of the Imam. Nagib and Alnaz also offered to participate in a conference call with "decision makers" to settle, once and for all, all legal matters so that the proceedings are not prolonged anymore. Nagib's letter was also copied to Dr Shafique Sachedina and to Dr Azim Lakhani, Chairman of LIF so that they could intervene and mediate a conference call, so that this file is closed once for all.
Why did defendants ask to modify the Order sent to them by Gray?
The "Consent Order" that Bryan Gray asked the defendant to sign is designed to substantially prolong the legal proceedings he asked the defendants to sign that the "plaintiff" would continue suing the defendants for "loss of profits" and "damages" and that they would be allowed to dig into defendants files in order to identify those who had purchased the " Golden Edition" book, probably with the intent to pursue them also.
What Gray's Order is asking is completely opposite and against the spirit and the letter of instructions at the Discovery on 15th October where Imam repeated many times that those who have the book can keep them.
In fact, the proposed Order also goes against the "purported Talika" which mentioned that the matter should not be prolonged. Imam would certainly not instruct his lawyer Bryan Gray, to prolong legal proceedings with "loss of profit claims" and "damage claims" while at the same time asking the defendants through Talika not to prolong the matter. This is NOT our Imam's way. But it certainly follows SS's pattern so far.
What was the response to Defendants' request for a discussion?
Gray's reply to both Nagib and Alnaz was categorical. His "client" was not interested in any "consent agreement" respecting Imam's instructions at the discovery. He was not interested in stopping the proceeding with an "agreed consent judgement" where all parities could get out of this mess in a dignified manner and where Imam's wishes and Farmans and significance of religious ceremonies would be respected.
The defendants tried what was in their power to avoid appeal but their efforts were fruitless. It is regrettable that even the leaders that were cc'd (SS and LIF Chairman) did not intervene for a negotiated settlement that would stop all proceedings. The defendants waited till Feb 7, which was the very last day of the deadline to appeal the judgment.
The content of the Appeal is based in Law, and points to the errors of Law and of fact in the reasons for Judgment, and asks to reverse the Summary Judgment granted in the Plaintiff's motion for Summary Judgment.
Some relevant Quotes from the appeals:
- By Law, Summary Judgment cannot be granted when there are serious credibility issues.
- There were serious disputes with respect to evidence, determining admissibility of evidence, credibility of witnesses, inferences to be drawn on contested facts, all of which precludes a motions judge from granting summary judgment.
- Weighing evidence is a role reserved to a trial judge who is vested with authority to weigh evidence, make inferences or adverse inferences, and make assessments of credibility after hearing viva voce evidence.
- The Motions Judge was obliged to look at the record for evidence and not go beyond the record.
- The defendants' were not obliged to file all of their evidence they would have presented at trial of the matter at the hearing of the motions, and the motions judge's speculating what might have happened at discoveries, or drawing inferences without facts on the record of the discoveries is an error of law which requires intervention by an appellant court.
- The Motions Judge erred in not drawing an adverse inference when the plaintiff did not provide direct evidence, and further erred when he admitted and relied on hearsay evidence in coming to his conclusions without any evidence of the necessity and reliability of such hearsay to be admitted as evidence. Entirely the whole evidence of the plaintiff was based on hearsay evidence.
- The Motions Judge erred in holding that the onus is on the defendants to prove consent contrary to the holding made by the Federal Court of Appeal
- The Motions Judge erred by failing to consider evidence concerning the defendants giving their Oath of Allegiance to the Aga Khan, who in return promised to Guide his followers. Furthermore, the Ismaili Constitution itself defines the binding relation between the Aga Khan and the Defendants.
- Detrimental reliance: a person who makes an unambiguous representation, by words, or conduct, or by silence, of an existing fact, and causes another party to act to his detriment in reliance on the representation will not be permitted subsequently to act inconsistently with that representation.
- The motions judge erred in analysing the issue of latches when he made findings of fact based on contested facts.
- The Motions Judge erred by deciding a significant question of law involving the interpretation of the Ismaili Constitution, the Farmans, and the 1992 Mehmani ceremony when authorization was given regarding the publication of the Farman books, in the context of summary motion rules.
- The Motions Judge erred in making findings of fact and drawing inferences on contested facts (e.g. paragraphs 12, 14, 15, 17, 18, 19, 20, 23, 24, 41, 42, 43, 44, 46, 52, 54, 56) which is not within the domain of a judge hearing a motion for summary judgment.
- The Motions Judge erred in finding that the experts reports are contradictory. The plaintiff's expert's opinion did not conflict with the defendants' expert's opinion, as stated that he was not retained to consider and he did not consider if the purported signatures were in fact signed by the Aga Khan.
- The Motions Judge erred when he found that Sachedina's evidence was credible. Sachedina's evidence was self serving devoid of specific facts and particulars, and one not capable of being admitted as it is entirely based on hearsay evidence, and in any event, a self serving affidavit without specific facts and particulars cannot create a triable issue.
- The Motions Judge also erred by relying on Bhaloo's affidavit when his evidence was based on double hearsay, and although he was a senior leader for Canada during the relevant period, he did not give evidence that the Aga Khan desired the activities undertaken by the defendants to cease
- The Motions Judge erred in not taking into account evidence that in at least one other court case, employees and officers of the Aga Khan have committed fraud on the Dublin High Court hearing, and in not determining that the defendants' allegations of fraud have a precedent and ought to be taken seriously.
- The conflicting and/or the missing evidence in respect of authorization and/or consent, the interpretation of the Ismaili Constitution, the interpretation of Farmans and the issue of relationship are all complex matters and presented genuine issues for trial.
|2011-02-07-Notice of Appeal - Alnaz Jiwa-online.pdf||345.59 KB|
|2011-02-07-Notice of Appeal - Nagib Tajdin-online.pdf||624.69 KB|
|2011-02-08-Plaintiff's Rule 369 Motion Record-online.pdf||304.8 KB|