B. News Articles on the Copyright Lawsuit
Links to News Articles from Ismaili.net
Lawsuit Allegedly filed by Aga Khan Against His Own - 2010-04-12
Worldwide Ismailis perplexed by report of a lawsuit allegedly filed by Aga Khan against two of his own - Can the suit be authentic?
Ismailis find this hard to believe as there is no affidavit by the Aga Khan in the court papers, and as the lawsuit is filed outside of the highly regarded Ismaili Arbitration process that the Aga Khan proudly favours.
Is there more to it than it seems?
Copyright Lawsuit: Defenses Glorifying the Aga Khan filed in federal Court - 2010-04-29
In a surprisingly rapid twist of events, both Mr Tajdin and Mr Jiwa have filed their respective statements of Defense this 29th of April 2010. They affirm to being devoted followers who will unconditionally abide by the wishes of the Aga Khan, whom they glorify in their defense.
Mr Tajdin declares that:
He has not been served yet but the ethics imposed upon him by his faith demands that he should not keep in ignorance the public by being silent on the issue and should clarify all of the facts, pertaining to this lawsuit, of which he is aware.
He reaffirms his allegiance to the Aga Khan, is willing to submit to any of his wishes, and is ready to surrender himself and all his possessions to the Imam.
He has been printing Farman books since 1992 with approval and instructions from the Imam received on August 15, 1992 in Montreal.
He has not received any communication from the Imam from 1992 to 2009 instructing him to stop publication.
He cannot stop publication without instruction from the Imam as this would be a breach of his oath of allegiance to the Imam.
All Farman publications were financial deficit projects done as a volunteer service and large numbers of books were distributed free of charge.
Farman sharing is a historic Ismaili tradition which still continues today.
The current Ismaili Constitution does not restrict the right to publish Farmans
Mr Tajdin concludes that:
He has no choice but to await further direct instructions from the Imam.
He reaffirms his allegiance to the Aga Khan, is willing to submit to any of His wishes, and is ready to surrender himself and all his possessions to the Imam.
Mr Jiwa states that:
"This action does not appear to have been authorized personally by the Aga Khan .."
"In distributing Farman books obtained from Tajdin to other Ismailis, he has not violated either the Ismaili Constitution or any Farmans"
He has not violated the copyright act as "Tajdin was given express authority by the Imam" and regardless of the fact that "the limitations period provided for by the Copyright Act also bars this action as the books containing the Farmans were commenced publication in the year 1992", he will still do whatever the Imam tells him to do.
Mr Jiwa clarifies finances:
He "obtains these books for C$50.00 and sells them for C$50.00 or gives them free, without any profit.
"All monies received by him from the sale of (other) books after 2005 were delivered to the Jamatkhanas"
Mr Jiwa further states that:
"If the Imam edited the Farman before releasing to the Jamats, in effect he is superceding the Farman he made orally previously."
He "unconditionally reconfirms his oath of allegiance to his Imam" and "if the Imam does not desire his Farman books to be distributed to the Jamats (...) this defendant will submit to the instructions of His Imam without reservation whatsoever"
Replies From the Plaintiff are due within 10 days, and Affidavits of Documents are due 30 days later.
[Update from May 6: Ogilvy Renault, the law firm which launched the case has asked for an extension of 15 days to reply to the Defense. They claim delays due to breakdown of email servers, blackberry communication, travel of senior lawyer, time difference with Paris etc...The more delays in this file, the more damage it creates to the reputation of the Ismaili community, the Imam and the defendants. It is to the advantage of all parties that this case be withdrawn from the courts.]
[Update from June 22: Defendants have filed a Motion for summary Judgement to have the case dismissed.]
[Update from September 5:
Online Book that gathers court materials as well as articles that are currently available for the ongoing 2010 Lawsuit:
Copyright Lawsuit 2010: Online Book of All available Materials
News on cross-examinations:
Copyright Lawsuit: CROSS_EXAMINATIONS Table of Contents - 2010-09-04
Latest Development
Copyright Lawsuit: Imam Appears for Discovery and Ends the Case - 2010-10-15
As users are asking to read the letters from Nagib and Alnaz on the court docket, the latest have been attached on the following link:
A. Various Court Filings
Revised Factums have been posted Here:
2010-11-29 Summary Judgment : Plaintiffs Revised Combined Factums of Reply and of Motion
2010-11-29 Summary Judgment: Defendants' Revised Factums of Motion and of Reply
There has been proven fraud in the recent past in the Aga Khan's domain by the Aga Khan's agents:
Aga Khan Lawsuit: Fraud at Aga Khan Studs - 2000-02-22
2011-05-25: A Jamati Member who has never met the Defendants volunteered as his brotherly duty to pay the $30,000 that was demanded in the Plaintiff''s submissions and that was accordingly ordered by the judge.
Read the full details of the $30,000 payment directly to H.H. The Aga Khan.
2011-06-16: The Appeal Memorandum of Fact and Law against the Summary Judgment has been filed in court by the defendants on June 16th, 2011.
Read the Full Appeal Memorandum of Fact and Law
Link to Court Docket Case T-514-10
Link to Court Docket Appeal A-60-11
Link to Court Docket Appeal A-59-11
Link to Court Docket Appeal A-156-13
EXCLUSIVE: Evidence for Aga Khan Lawsuit - multipart report - 2010-05-01
Lawsuit Allegedly filed by Aga Khan: Heritage News has obtained exclusive access to some of the evidence to be submitted by the defendants Nagib Tajdin and Alnaz Jiwa. Documents and evidence extracts were posted here every few days in a multipart report.
Copyright Lawsuit 2010: Online Book of All available Materials for Lawsuit Allegedely by Aga Khan
Copyright Lawsuit: Expert says Notarized Affirmation is a FAKE! - 2010-06-22
Breaking their silence of more than a month following the wide circulation of the Notarized Affirmation purported to have been signed in Boston by H.H. the Aga Khan, Defendants have disclosed their findings that the Affirmation is fake and they have therefore swiftly filed a Motion for Summary Judgment to be heard on July 12th 2010 at the Federal Court of Canada. The Motion says: "The activities complained of are not infringing the rights of the Aga Khan, who it appears from the forged signatures, has not authorized this action.
The defendants are seeking to have the action dismissed as well on the grounds that they undertook the distribution of the Farman books after receiving the Aga Khan’s instructions and blessings in August 1992, and any activity undertaken with the copyright holder’s consent, even if orally given, is not an infringement of the copyright law.
The Statement of Claim for copyright infringement purported to be from the Aga Khan against two of his followers was filed at the Federal Court early April 2010. It was based, according to one defendant, on a precursor letter dated 24th of January 2010 sent from the secretariat of the Aga Khan to him asking the defendant Tajdin to recall all the "Farman" books published under the "Golden Edition" title on the birthday of the Imam in December 2009.
Farmans are religious pronouncements believed to come from The Light of God [Noor] in the Ismaili tradition as defined by the Imam himself. They cover all aspects of spiritual and material life of the followers. Defendants Jiwa and Tajdin say they were never warned by The Aga Khan to stop publication and distributions of the Farman books. The Defendants exposed the forgery of the signature in the letter purported to be from the Imam in their Statements of Defense.
The plaintiff represented by the renowned firm Ogilvy Renault filed a reply to the defenses - after requesting an extension of 15 days to file their reply - based on the content of a Notarized Affirmation signed in Boston on May 12th 2010. The Affirmation stated that the Imam had given instructions for the Lawsuit as well as for the announcements in all the Jamatkhanas [religious places of worship for the followers], it reaffirmed that the Imam had himself signed himself the letters THEN proven by TWO forensic examiners to have been forged.
The Affirmation was widely circulated on the Internet by the Plaintiff's lawyer Mr Brian Gray although it was not filed in Court. Last week, Counsel for Plaintiff filed an amended reply to the defense correcting a few typos – thus obtaining a 30 day extension for serving their affidavit of documents which was to be served by june 25, 2010, as per the court rules. Why the action continues to be delayed by the plaintiff is a mystery, and it appears that the defendants wish to resolve this case as soon as possible; as a result, the defendants are moving ahead with a motion for summary judgment.
The defendants themselves, surprisingly, have now introduced in court the Notarized Affirmation, dated May 12th 2010 as an Exhibit with the defendants' affidavits, along with an expert’s report that states that the Aga Khan did not sign the affirmation.
In an email reply to a question by Heritage News, Tajdin said that the defendants were "tipped-off" by someone working closely with the Aga Khan's Secretariat in Aiglemont, only days after the signing of the Affirmation, about a possibility of foul play in the authenticity of the Notarized document,
The Counsel for Plaintiff reluctantly released, for a limited number of days, the orginal affirmation for verification to defendant Jiwa. Counsel for plaintiff also declined twice to provide address and contact information for the Notary and the people who witnessed the signature of the Affirmation. The defendants are not surprised at the refusal to be provided this vital information in light of the expert’s finding that the Aga Khan did not sign the affirmation.
The defendants have now lodged, at the Federal Court, evidence proving that the notarized document is a fake. They write in their Affidavit and Motion: "All four expert-reports by three different experts have confirmed that the signatures purporting to be that of the Aga Khan were forged signatures. To date, no real signature of the Aga Khan, the named Plaintiff, can be seen on any document related to this lawsuit."
The defendants are maintaining that the book in question was published with the authorization and blessing of the Aga Khan. They have filed a sworn first-hand Affidavit describing the acceptance by the Aga Khan of the publication of the Farman book in August of 1992 , who not only gave them his blessings, but also gave instructions to continue the work. Tajdin states in his affidavit that he commenced distributing the Farman books after the blessings and instructions received from the Imam, and has since continued publishing Farman books.
According to Copyright laws, a verbal consent for publication can be cancelled anytime by the rightful owner of the work, but it can not be cancelled retroactively. The defendants have re-affirmed in their affidavit, in no uncertain terms, their willingness to abide immediately to all direct instructions, if received from the Imam, regardless of the legal aspect of the lawsuit.
The defendants also state that to date there is no credible evidence that the Aga Khan has authorized this action. They note that the claim was not served on Tajdin for almost a month after filing, the signatures were forged, vital information was withheld from Tajdin, and proceedings were delayed; such matters simply convince the defendants that their suspicions have substantial merit and they are confident that the action will be dismissed.
The Defendants are confident they will be successful in proving in Court their Motion as well as the forgeries in the Affirmation and in letters purported to have been signed by the Aga Khan. They believe, with the discovery of the repeated forgeries, the whole claim of copyright infringement has collapsed like a house of cards. This has now paved the way for a strong defamation lawsuit and possible criminal case for forgery in any or all of the 4 countries involved.
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Go to Affidavits in support of this motion
EXPOSED #1: Expertise on forged signature in the case of the Copyright Lawsuit allegedly by the Aga Khan
The letter send to the defendant and purported to be from the Imam had a forged signature on it. The defendants have asked the judge to conduct a full inquiry into the forging of the signature. This particular expertise from one of the leading American forensic expert is dated 2 months before the initiation of the lawsuit. Who is afraid to be caught forging the signature of the Imam?
Forgery is punished in France with up to 5 years of jail. Attached is a part of the report from one forensic expert. The report is certified and notarized in Texas . The complete report is to be submitted to the court together with other independent forensic reports, all confirming that the signature of the Imam has been forged on the letter sent to the defendant.
Attached is a part of the report form one forensic expert.
Who forged the signature of the Imam?
More on next Tuesday 4th of May 2010 or before..
EXPOSED #4: The Cat is out of the Bag in the case of the Lawsuit Allegedly by the Aga Khan - 2010-05-08
What and who triggered the announcements of LIF in all JK of the world? That is an important question in the matter of the Copyright Lawsuit purported to be from “The Aga Khan.”
In February, long before the lawsuit, there was a phone call received by one of the defendants after he reported to Aiglemont that he had discovered that the Imam’s signature was being forged.
Why was it necessary to forge Imam’s signature? Who did it? How many more forgeries were done?
All these were questions in the mind of one of the defendants, that morning of 17th February 2010, when he received a threatening phone call to silence him. It was a miracle that, the same day, for the record, he decided to put that conversation in writing.
Heritage News is disclosing part of the document here as it will be one of the many documents submitted in Court as evidence that there is more to this lawsuit then meets the eyes.
UPDATED MAY 22 - Copyright Lawsuit: Solution in Sight - 2010-05-19
A solution is in sight to expeditiously resolve this Copyright Lawsuit case to the satisfaction of the Aga Khan and of all parties.
Copyright Lawsuit: 5 minute meeting with H.H. The Aga Khan to close the case - 2010-05-19
Law Firm threatens defendants and acts on the threat!
Heritage News has found out that Mr Brian Gray, lawyer for the purported Plaintiff in the Aga Khan Copyright lawsuit, threatened the defendants to widely circulate a purported "affirmation by the Imam" while delivering the said affirmation.
Mr Gray could have used the standard line that noncompliance would result in further court proceedings, but he did not do that. Instead he opted for an unbecoming written threat to defame! This raises more questions about the origin of this case. Would the Imam allow such a threat? Can this have been an instruction from a usurper?
Heritage News has further found out that Mr Gray has started acting upon his threat by publicizing the said affirmation.
5 minute meeting with H.H. The Aga Khan to take His instruction and close the file
Increasing evidence shows that the whole lawsuit was launched without any direct instruction from the Imam
The defendants however, have found some common ground between the lawyer's demand and their position:
* The original forged letter, which Mr Gray believes to be genuine, clearly requires the defendants to confirm their actions directly with the Imam.
* The defendants, upon direct communication with the Imam are willing to stand by every promise in their defense.
* According to the Oxford dictionary, direct means in person and without intermediary.
Therefore, the defendants have asked Mr. Gray if it is possible to arrange a 5 minutes meeting with H.H. The Aga Khan for them to receive direct instructions from the Imam on how to proceed henceforth. They have also expressed their sincere wish to resolve the matter quickly, while ensuring that the Imam's interests are protected.
Here is an opportunity for Mr. Gray to do the right thing.
Copyright Lawsuit Allegedly by Aga Khan: MOTION FOR DISMISSAL FILED - 2010-06-21
On June 21st, the Defendants filed a motion for an order granting summary judgment dismissing the plaintiff's action. The Motion introduces new evidence of forgery and says: "The activities complained of are not infringing the rights of the Aga Khan, who it appears from the forged signatures, has not authorized this action." The motion will be argued 12-JUL-2010 to begin at 09:30, and an affidavit of reply is due from the plaintiff 10 days before this date.
Heritage news has created this special report section on the new developments in the Copyright Lawsuit allegedly by the Aga Khan. This section will be shortly updated with copy of Motion, Affidavits and Exhibits from Court. View All Comments on the Case
Copyright Lawsuit allegedly by Aga Khan: Defendants Move for Dismissal of the lawsuit - 2010-06-22
Breaking their silence of more than a month following the wide circulation of the Notarized Affirmation purported to have been signed in Boston by H.H. the Aga Khan, Defendants have disclosed their findings that the Affirmation is fake and they have therefore swiftly filed a Motion for Summary Judgment to be heard on July 12th 2010 at the Federal Court of Canada. The Motion says: "The activities complained of are not infringing the rights of the Aga Khan, who it appears from the forged signatures, has not authorized this action."
The Statement of Claim for copyright infringement purported to be from the Aga Khan against two of his followers was filed at the Federal Court early April 2010. It was based according to one of the defendants on a precursor letter dated 24th of January 2010 sent by the Aga Khan to him asking the defendant Tajdin to recall all the "Farman" books published under the "Golden Edition" title on the birthday of the Imam in December 2009.
The plaintiff represented by the renowned firm Ogilvy Renault filed a reply to the defenses - after requesting an extension of 15 days to file the reply - based on the contents of a Notarized Affirmation signed in Boston on May 12th 2010. The Affirmation was widely circulated on the Internet by the plaintiff's lawyer Mr Brian Gray, althought was not filed in Court. The Affirmation stated that the Aga Khan had given instructions for the Lawsuit as well as for the announcements in all the Jamatkhanas [religious places of worship for the followers], it reaffirmed that the Imam himself had signed the letter THEN proven by TWO forensic examiners to have been forged.
The defendants have now lodged at the Federal Court evidence proving that the notarized document is a fake. They write in their Affidavit and Motion: "All four expert-reports by three different experts have confirmed that the signatures purporting to be that of the Aga Khan were forged signatures. To date, no real signature of the Aga Khan, the named Plaintiff, can be seen on any document related to this lawsuit."
The defendants have re-affirmed in their affidavit, in no uncertain terms, their willingness to abide immediately to all direct instructions, if received from the Imam, regardless of the legal aspect of the lawsuit. The Defendants state that to date there is no credible evidence that the Aga Khan has authorized this action.
The Defendants are confident they will be successful in proving in Court their Motion as well as the forgeries in the Affirmation and in letters purported to have been signed by the Aga Khan. They believe, with the discovery of the repeated forgeries, the whole claim of copyright infringement has collapsed like a house of cards. This has now paved the way for a strong defamation lawsuit and possible criminal case for forgery in any or all of the 4 countries involved.
Additional Details are available in the related article titled "Copyright Lawsuit: Expert says Notarized Affirmation is a FAKE!"
Copyright Lawsuit Motion for Dismissal: ANOTHER DELAY TACTIC - 2010-06-24
The Plaintiff's lawyer at Ogilvy Renault has asked the defendants to allow their Motion to be postponed so that the Plaintiff can have the time to file their own motion for summary judgment and both motions can be then heard at the same time. The defendants have said a categorical “no!” to this new attempt to delay the proceedings.
As usual, the Defendants expect that reaction to their “no” will be more threats, propaganda, defamation and slander but ultimately the defendants have told the Heritage News that they will comply with the Court process and the Law of the Land as required by the Imam in His Farmans. They said they will prove to the Court that the Aga Khan’s name has been misused and that the delays created by Plaintiff’s lawyers are detrimental to the reputation of all of the stake holders including the Ismaili Community at large and its beloved leader, H.H. The Aga Khan.
The fact that forgery of the Aga Khan’s signature was necessary on key documents in trying to convince the defendants and the Court, is one of the elements that they will point to the Court as supplementary proof that the Aga Khan has not initiated this lawsuit.
Copyright Lawsuit: Read the AFFIDAVITS in Defendants' Motion Here - 2010-06-24
Attached are the Affidavits submitted by defendants Alnaz Jiwa and Nagib Tajdin on June 21, 2010 in support of a motion for summary judgement to dismiss the case.
03-Affidavit of Karim Alibhay sworn April 28, 2010.pdf
Karim Alibhay presented the first Kalam-E Imam-E Zaman Book in Mehmani on August 15th, 1992. His affidavit describes the circumstances of this Mehmani. .The Imam had blessed family and the rest of the Mehmani tray; Alibhay then, intending to present the book which was also on the tray, asked how they could serve the Imamat. This is when the Imam came closer, took a long look at the book, placed His hand on it, and gave blessings and instruction to continue. Alibhay adds that the recording of this mehmani must exist with the Ismaili Council as it was projected live, and recorded too.
This description is important because for Nagib Tajdin, this instruction became a Farman that he could not disregard, and due to which he continued the work for 18 years.
03-Affidavit of Alnaz Jiwa sworn June 16, 2010.pdf
Alnaz Jiwa explaines the circumstances in which he came to learn of the existence of these Farman books and subsequently to start to distribute them. He details how he is only following Farmans and the Constitution and has breached Neither. He adds that following the consent and instructions in 1992, there is not sufficient evidence to convince him that the Aga Khan has now changed His mind on the matter. He also details many discrepancies and abnormalities in the events surrounding this action which create doubt on the authenticity of the action.
Notably, Alnaz does not seem to have been personally contacted at all to stop distribution nor personally warned by anyone prior to being sued in this action.
04-Affidavit of Nagib Tajdin sworn May 7, 2010.pdf
Nagib Tajdin details his search for Farmans, how he came to collect, and compile Farmans as a voluntary service in order to preserve their dignity, and how the Kalam-E Imam-E Zaman farman book distribution commenced only after acceptance and instructions from the Aga Khan, and continued openly for the past 18 years.
This affidavit also details some of the history of communication with Shafik Sachedina dating back to 1998 when they were to collaborate on the 4th volume of Farmans. The main disagreement between Tajdin and Sachedina was because Sachedina maintained that the Imam's wordings need to be edited because The Imam was" thinking in French and speaking in English" and Tajdin maintained that Farman wording should not be changed.
05-Supplementary Affidavit of Nagib Tajdin sworn June 16, 2010.pdf
Tajdin's supplementary affidavit details how the January 24th letter as well as the affirmation, both allegedly by the Aga Khan, came to be, and the discrepancies surrounding the delivery, the content and handling of these, as well as the 4 expert reports by 3 different experts concluding that they are not signed by the Aga Khan.
Tajdin reaffirms that he will cease the contentious activities if the guidance to cease is directly given to him by the Aga Khan.
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Copyright Lawsuit: Read the EXHIBITS in Defendants' Motion Here - 2010-06-24
Letter humbly written by Nagib Tajdin to the Aga Khan submitting Mehmani, Nazrana, and asking for guidance.
Letter received by Nagib Tajdin from the secretariat of the Aga Khan. This is the same letter which is said to be written in a style totally different from that of the Aga Khan, and whose signature has been assessed by 3 highly qualified forensic experts as being forged.
Expert report on the January 24th letter concluding that the Aga Khan did not sign the letter. The expert is highly qualified, and came recommended by a Lawyer who has long worked for the Aga Khan Council for canada.
The expertise was based on 5 authentic signatures, one of which was dated December 2009, which is after the Aga Khan's Shoulder operation.
Expert report on the January 24th letter concluding that the Aga Khan did not sign the letter. The expert is based in the USA and is highly qualified.
The expertise was based on 5 authentic signatures, one of which was dated December 2009, which is after the Aga Khan's Shoulder operation.
This is the Affirmation in which the Aga Khan allegedly says that he is the plaintiff, that he never consented to the printing of the book, etc..
This is the same document that, although it is still not filed in court by the plaintiff's Lawyer, was widely circulated by the Lawyer after threatening to do so while delivering it to Tajdin.
Expert report on the January 24th letter concluding that the Aga Khan did not sign the letter. This is a highly qualified expert with a long and impressive resume.
His report was based on 20 authentic signatures, one of which was dated December 2009, which is after the Aga Khan's Shoulder operation. The expert noted that the variation in the known signatures of the Aga Khan is narrow,
Expert report on the May 12th affirmationconcluding that the Aga Khan did not sign the letter. This is a highly qualified expert with a long and impressive resume.
His report was based on 20 authentic signatures, one of which was dated December 2009, which is after the Aga Khan's Shoulder operation. The expert noted that the variation in the known signatures of the Aga Khan is narrow,
Email thread detailing Tajdin's request to Mr Gray for contact information of all the persons present during the notarized signing of the affirmation, and the lawyer's polite refusal.
Images of the various Farman Books printed by Tajdin
Images of the various Farman Books printed by Tajdin
Nagib Tajdin Affidavit sworn May 7, 2010
Exhibit D - Copy of announcement of January 16, 2010.pdf
LIF announcement read all over the world on May 7th. According to Tajdin - This is the beginning of the manifestation of Sachedina's threat to ruin the defendant's reputation in the Jamat.
Email in french sent by Tajdin to the secretary at Aiglemont who had sent him the forged letter of January 24th. No reply was received to this email from Ms Parkes.
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Copyright Lawsuit: Read the MOTION for Dismissal by Defendants Here - 2010-06-24
Attached are the motion materials submitted by defendants Alnaz Jiwa and Nagib Tajdin on June 21, 2010.
01-Notice of Motion of Alnaz Jiwa dated June 16, 2010.pdf
In Jiwa's outline of the grounds for this motion, he states that there is no genuine issue requiring trial and that the action should be dismissed because the action is brought under the name of the Aga Khan without His consent, because Ismailis have an inherent right to the Farmans and implied consent to distribute Farmans, because of consent given by the Aga Khan in 1992, because Jiwa has not breached any Farmans or the Constitution, and Because forensic experts have reported that none of the examined materials are actually signed by the Aga Khan.
02-Memorandum of Fact and Law of Alnaz Jiwa.pdf
The memorandum document gives details, and supporting materials for all of the grounds mentioned in the Notice of Motion, and adds that although there is consent and implied consent, the motion can be dismissed on the sole basis of the forgeries.
01-Notice of Motion Nagib Tajdin dated June 16, 2010.pdf
In Tajdin's outline of the grounds for this motion, he states that there is no genuine issue requiring trial and that the action should be dismissed because the action is brought under the name of the Aga Khan without His consent, because Ismailis have an inherent right to the Farmans and implied consent to distribute Farmans, because of consent and implied consent given by the Aga Khan in 1992, and because experts have reported that both the precursor letter to this action and the recent affirmation document are forged.
02-Memorandum of Facts and Law of Nagib Tajdin.pdf
The memorandum document gives details, and supporting materials for all of the grounds mentioned in the Notice of Motion. It also details the Mehmani, Dr Sachedina's correspondence, as well as many contradictions and suspicious behaviours which align with the fact that the Aga Khan is not the real plaintiff. But mostly, it reaffirms the defendant's allegiance to the Imam and portrays the publication of Farmans as voluntary work undertaken with the consent, instructions and blessings of the Aga Khan.
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Go to Affidavits in support of this motion
Copyright Lawsuit: New Motion to Show That Aga Khan is NOT the Real Plaintiff - 2010-07-31
Since the Defendants are acting on a Farman to them made in 1992, and since this Farman also gives instructions and guidance to continue distributing Farmans, then there is nothing in Ismaili Faith nor in the Canadian Legal system that can force them to stop their actions except the Imam, by giving new instructions Himself.
The Defendants have motioned to halt all proceedings until direct evidence from the Plaintiff can be received. The Defendants have also motioned for Discovery of the Imam for 5 minutes in Paris to confirm that he is not the one who initiated the lawsuit and to tell him the whole truth of the forgeries.
Since there is so much evidence pointing to this case being initiated and run by a usurper, it is understandable that he and his supporters will feel like they are in hot water, and will continue to fulfill their threat to ruin the defendants and their reputation.
Discovery Request by Defendants Will Demonstrate That Imam is Not the Real Plaintiff - Copyright Lawsuit - 2010-07-31
Request by the Defendants for Discovery Would Help the Plaintiff Win
The Plaintiff's Lawyer, Mr. Gray informed the Defendants that he advised the Imam NOT to attend for Discovery, which prompted the Defendants to question, why would counsel advise against a five-minute meeting to end the case and instead continue toward 10 or more full days' worth of legal proceedings other than to earn excess fees... Hence the bringing of the Motion by the Defendants to stay all cross-examinations until it can be confirmed if the Imam is really behind the litigation.
The latest request by the Defendants for Discovery of the Plaintiff would, if the case was authentic, give the Plaintiff the easiest way to win every aspect of the case, or since the case is not authentic, it will prove that the Aga Khan is not the Real Plaintiff.
The Proceedings are Against Tenets of Ismaili Faith
Two of the many tenets of ismaili Faith that are brought to question by this Lawsuit are described in the following extract.
"7. The statement of claim, as well as the reply, is degrading our Imam by destroying two of the main tenets of of Ismailism of which He is the Imam: the first tenet of Ismaili faith is about the Infallibility of the Imam in matters of religion, that Sachedina states that the Imam, when making Farmans, makes mistakes which requires correcting by institutional leaders; and the second one is that the Farmans originates from the Divine Light which is called "Noor" and therefore can not be changed in any way until superseded by a new Farman.
" Extract from Nagib Tajdin's Affidavit of July 29, 2010
Reasoning Behind the Need for a Stay in the Proceedings
Reasons why a temporary halt of the proceedings is beneficial to all is described in the following extract:
"16. The defendants ask that the cross-examinations and other procedures scheduled for the motions for judgment be stayed for a period of 30 days or until the Aga Khan is produced for oral examinations for the following reasons:
(a) the defendants position is that the Aga Khan is not behind this lawsuit,
(b) A delay of 30 days for the cross-examinations will not prejudice the plaintiff;
(c) Extensive cross-examination preparations, attendance for cross-examinations, transcript costs, costs for the experts’ cross-examinations, preparation of updated memorandum of fact and law, two to three days set aside for hearing of the motions, travel by two (and possibly three) witnesses from Kenya, along with their own loss of time from work; judicial resources, all will be avoided if the named plaintiff attends for discoveries for five minutes to confirm if he is behind this litigation and directly confirms if he, either did not give his consent on August 15, 1992, or that he revokes that consent, or that he does not wish to have His Farmans distributed by the defendants;
(d) The defendants have all along stated that if the Aga Khan wishes to stop the activities complained of, the defendants would be abided immediately by the defendants despite any legal avenues available to them;
(e) The plaintiff’s counsel’s instructing his client not to attend on reasoning that if either of the motions succeed discoveries would not be necessary, but he ignores the very real probability that the plaintiff may not succeed in his motion without any direct evidence from the named plaintiff, and in any event, there is a strong probability that neither party may succeed, and if so, the parties would have to proceed with the litigation;
(f) The defendants are not seeking costs from the named plaintiff, therefore, even if the defendants win their motion, they cannot collect costs from the named plaintiff who is their spiritual father; and
(g) Allowing the discovery to proceed will conclusively resolve the litigation, either by confirming that the Aga Khan is the real plaintiff, in which case the defendants would cease their activities, and if the Aga Khan is not the real plaintiff, then such injustice would be stopped in its tracks.
" Extract from Alnaz Jiwa's Notice of Motion of July 29, 2010
Does Imam use Intimidation Tactics?
Since there is so much evidence pointing to this case being initiated and run by a usurper, it is understandable that the usurper and his supporters will feel like they are in hot water, and will continue to fulfill their threat to ruin the defendants and their reputation.
In fact, when the Copyright Lawsuit was filed, and even before the Defendants were served, it was circulated by email to worldwide ismailis. Mass pressure tactics are undertaken on the web, through a telephone campaign, through unrelenting and continuous personal gatherings in Jamatkhanas. All to establish that 2 murids of the Imam of the time were enemies of the Faith for having circulated the Farmans of their Imam to their community. Would the Imam need to use such tactics? Are there not very simple and definitive ways in which the Imam can establish His authority in the matter without creating such unrest in the Jamat?
Copyright Lawsuit: CROSS-EXAMINATIONS confirm that the case is not authentic nor filed by Aga Khan - 2010-09-04
Heritage News has obtained the cross-examination transcripts, and they contain many revelations. First impression from Heritage News is that the three people who allegedly represent the Imam in this case seem to confirm everything that the defendants have been saying! The defendant's position comes out even clearer and stronger! - But you be the judge once the transcripts are available.
Mr Gray's questions show his lack of knowledge of the Imamat, the Ismaili Faith and the Institutions. His questions instead, undermine the Imam!
Mr Sachedina's answers go against the main principle of Ismaili Faith and undermine the value of the Word of every hereditary Imam, a value which has been central to Ismaili Tariqah right from the beginning. Mr Sachedina's answers also confirm that all evidence in this case originates from him.
Mr Bhaloo has no input to give on the matters of importance in this case, and has appeared only at the request of Mr Sachedina. He refuses to answer simple questions and contradicts Mr. Sachedina.
Mr Tajdin's answers show that he has maintained a good relationship with Dr. Sachedina and Mr. Bhaloo, and that he has had many opportunites to approach the Imam, but that he has never crossed boundaries due to the code of conduct prescribed to Ismailis. He asks many of the same questions that the worldwide Jamat has about this Lawsuit, and pinpoints contradictions.
Mr Jiwa asks clear questions requiring precise answers that show the holes in the plaintiff's case as well as whether the witness is making up a story. Mr. Jiwa's answers show that he had nothing to do with the publication of thye Golden Edition KIZ and appears in this Lawsuit due to a confusion by Mr Sachedina between Mr Jiwa's private mailing list and Mr Tajdin's public website.
Both defendants reaffirmed under oath that they will stop all infringing activities if they have an authentic instruction from the Imam Himself to do so, no matter the legal recourses available to them.
Online Book that gathers court materials as well as articles that are currently available for the ongoing 2010 Lawsuit:
Copyright Lawsuit 2010: Online Book of All available Materials
Cross examination Transcripts:
2010-08-09 CROSS-EXAMINATIONS for Summary Judgement Motions
Copyright Lawsuit: CROSS_EXAMINATIONS Table of Contents - for case allegedly by Aga Khan - 2010-09-04
Here is a detailed table of contents of the cross-examinations for the Motions for Summary Judgement in the Copyright Lawsuit allegedly filed by the Aga Khan. We tried to include everyone's burning questions.
Are Farmans to be followed?
Mr Sachedina says that Farmans that we hear in Didars are not actually Farmans and are not to be followed. He maintains throughout his testimony that only the written edited versions sent by ITREB are actually Farmans. Later, Mr Sachedina has to admit that Farmans come from the Noor, the Light of God. Mr Bhaloo says that Talikas containing blessings are not Farmans.
Are Ginans to be followed?
Mr. Sachedina maintains that Ginans are just devotional poetry and are not meant to be followed.
Are Previous Imams' Farmans to be Followed?
Mr Sachedina maintains that he does not follow Farmans of previous Imams.
Has an Official Farman Book Publication Been Approved?
LIF's announcement in January 16, 2010, informed the jamats as follows: "The Jamat will be pleased to be informed that Mawlana Hazar Imam has already approved that the Jamati institutions should formally publish a volume containing the approved text of his farmans, including those made for the Golden Jubilee."
Is this announcement accurate? Mr Sachedina cannot pinpoint whether or when the approval for this official Farman book was given, and does not indicate that any work is under way to produce an official Farman book.
Over 80% of ismailis have NO access to Farmans.
Mr Sachedina helps to establish that despite there being a few thousand Jamatkhanas, the circumstances of the worldwide ismaili Jamat are such that over 80% of ismailis do not have access to Jamatkhanas or to Farmans.
Does Imam Think in French and Speak in English?
Mr Sachedina admits twice to saying that the Imam thinks in French and speaks in English.
Health and Age of the Imam - Gray Keeps bringing this up.
Mr Gray tried to establish that the Imam is aging and in bad health. It was refuted by everyone.
Did Sachedina and Bhaloo discuss their Affidavits with the Imam?
Bhaloo and Sachedina did not discuss their Affidavits with the Imam.
Did the Imam ask Sachedina and Bhaloo to be His witnesses in this case?
Mr. Sachedina is the one who asked Mr Bhaloo to be a witness. No word on who decided that Mr Sachedina should be a witness.
Initiation of the Lawsuit
Sachedina says that only 2 people were involved in the issuing of the Statement Of Claim: Sachedina and Manji. Sachedina has a hard time pinpointing when the Imam gave the go-ahead to proceed with the Statement of Claim.
Whether Gray has spoken to the Imam
Gray tried to show that he has spoken to the Aga Khan by producing a group photograph including him and The Aga Khan Taken at the Aga Khan Museum Foundation Ceremony.
Are defendants insisting to meet the Imam?
Defendant Nagib Tajdin is often in close proximity but never addresses the Imam. The defendants are not insisting to meet the Imam, they are insisting on getting any authentic direct instruction from the Imam so that they know whether to continue or not.
Meeting the Imam: Defendant's Alternatives
Defendants present some alternatives that the Imam had to make them stop their activities without needing to meet them.
Meeting the Imam: Gray's Alternatives
Gray knows that the Lawsuit will end if the Imam says in person "Nagib Stop.", yet he tried many times to find alternatives to producing the Imam. None of his alternatives seem to show that he has access to the Imam.
Contradiction: April 2010 Announcement - No Consultation?
Brian Gray tries to establish with Nagib that the April Announcement was written in consultation with all the LIF. Sachedina later contradicts this point of view and establishes that in fact the draft of the second announcement was not circulated to anyone in the leadership before it was read out in Jamatkhanas as being from the LIF, Councils, ITREB etc on the same evening that it was written by a couple of persons including Sachedina.
Contradiction: Did Nagib Tajdin's letter really reach Aiglemont on Jan 20?
Sachedina, in his affidavit, says that Nagib's letter to the Imam Reached Aiglemont on January 20, 2010. Sachedina's email to Nagib on January 10 said that Aiglemont had no trace of Nagib's letter. Nagib produced a letter from the Kenya Council, as well as a confirmation from DHL that the letter actually reached Aiglemont on January 8th.
Contradiction: Drafting of the February 18th letter purportedly by the Imam
Mr Sachedina told Mr Jiwa that the Imam showed Mr Sachedina a draft of the second letter before signing it. Mr Sachedina told Mr. Tajdin that the Imam was away travelling when he drafted the second letter.
Did Sachedina convey to Imam that some of the points in the forged letter needed clarification?
Mr Sachedina did not convey to the Imam that Mr Tajdin had responded to the first letter with a request for clarifications.
Has Imam spoken to LIF, or is there a huge conspiracy against the defendants?
Gray tried to show that if the defendants are to be believed, then it would mean that there is a huge conspiracy of dozens of corrupt leaders, staff, and that this is unbelievable.
Sachedina's cross-examination showed that the misinformation can be pinpointed to very few individuals. Even the LIF Chairman, Lakhani, has not been contacted by the Imam about this issue, the LIF was briefed by Sachedina, and the announcements were written by only a couple of people, not by the whole ismaili leadership as they seem to imply or as Mr Gray seems to think by looking at his questions to Tajdin and Jiwa.
This confirms that all evidence in this case originates from Mr Sachedina.
Where the Farman Dissemination Policy of March 2010 Comes From
The Farman Dissemination Policy document of March 2010, submitted to court by the Plaintiff party, does not come from the Imam or from Aiglemont, it comes from Mohamed Manji.
Can anyone else sign for the Imam?
Mr. Sachedina dispels the rumours that someone else is allowed to sign for the Imam.
Can Imam's Farman supercede the Constitution?
This is a simple question, but Mr. Bhaloo, although he has been swearing to protect the constitution for decades, refused to answer the question on the grounds that he is not a constitutional expert.
Is there a breach of the Ismaili constitution?
Obviously, if there was a clear breach of the ismaili constitution, then this case would have been in the Arbitration board.
Discussions about the constitution have revolved around the specific clauses about Farmans that were included in previous constitutions but that have been removed from the newer constitution since 1986. Older constitutions distinguished between religious publications and Farmans. The clauses about Farmans were removed by the Imam, but the clauses about the other religious publications remained intact.
Sachedina maintains that the constitution has been breached and that in the case of Farmans, only the Imam can Publish or authorize publication, Not Itreb, not the Council. However, if the current constitution is to be relied on to prove the breach, then article 14.1c lets the Ismaili Council authorize publications (and this is how Mr Gray seems to understand it), and Article 8.4d gives the ITREB's the responsibility to publish. Neither article reserves the right for the Imam. This leaves us with Farmans to follow which say that Imam makes Farmans FOR Jamats.
Who Can Print Farmans
It is the Imam's prerogative to decide who can print Farmans, and it can be anyone.
How long did Defendants know about the Forgery before making it public?
It turns out that in order to protect the trust that Jamati institutions have with the Jamat, the defendants had not publicized their knowledge of forgery until after the Lawsuit was filed when they no longer had the choice.
What is Mr Sachedina's actual role at Aiglemont
Mr Sachedina's role a head of the department of jamati institutions is not a constitutional position, and the department of Jamati institutions cannot give new directions to institutions. Ismaili Institutions do not report to Mr. Sachedina. He coordinates their work, but ultimately, the institutions are answerable to the Imam.
What is the relationship between Defendants and Sachedina and Bhaloo?
Both Sachedina and Bhaloo agree that they are in good terms with the defendants. In the Case of Alnaz Jiwa, they don't recall ever interacting with him. In the case of Nagib Tajdin, they claim cordial, even warm relations with him, admit that he has never acted unrespectfully against either of them, and that his family was well-respected until the Announcements and the Lawsuit.
Why is Alnaz Jiwa included in the Lawsuit?
It turns out that Alnaz has no role in the publication and a minimal role in the distribution of the KIZ Farman book series. The reason he was included in the lawsuit seems to be due to a confusion on Mr Sachedina's part.
Are Farmans made Available to Non-Ismailis?
ITREB is manned 100% by ismailis who have taken the ismaili oath of office. The IIS is manned at all levels by many non-ismailis who are not bound by the constitution. Why then, are Farmans asked to be sent to IIS and not ITREB?
Contradiction: Did Sachedina give Nagib's address to Michelle Parkes?
Sachedina started saying that he had nothing to do with Miss Parkes' correspondance with Mr Tajdin. However, he was not able to stick to that story.
Contradiction: Imam's criticism of Leaders in London
Mr Sachedina maintains that the Imam's comment about Leaders in London during Golden Jubilee was incomplete. This statement is shown to be false.
Contradiction: Recall all books or just the Golden Edition?
Would the Imam ask Mr Tajdin to undertake an impossible task?
Contradiction: Who mentioned Nagib Tajdin's Name?
Sachedina's Affidavit says that the Imam mentioned Nagib Tajdin's activities to Sachedina. His earlier testimony says he knew nothing of Nagib's actions before he started working at Aiglemont. Now, Sachedina says that he is the one who mentioned Nagib's name to the Imam.
In 1998 Did sachedina and Bhaloo take the Farman Book Draft to the Imam?
The Draft that Nagib Gave for the Imam in 1998 is still in Bhaloo's house.
Is the Imam concerned about the website?
Mr Sachedina states that there is a general concern about the contents of ismaili websites, and a review is pending, however, Mr. Sachedina also says that Mr. Tajdin himself has been part of the solution.
Significance of Mehmani
A murid is quite entitled to speak to his Imam during Mehmani. Imam does listen, interact with and guide Murids during Mehmanis. Although reluctant, even Mr Bhaloo came around to this conclusion.
Significance of Talika
Talikas and Farmans are not regular speeches, they are treated with the greatest respect and special ceremonies as Divine words for the Ismaili community.
Online Book that gathers court materials as well as articles that are currently available for the ongoing 2010 Lawsuit:
Copyright Lawsuit 2010: Online Book of All available Materials
Cross examination Transcripts:
[2010-08-09 CROSS-EXAMINATIONS for Summary Judgement Motions]
[Cross-Examination of Expert Shows Main Weakness of Lawsuit Allegedly by Aga Khan - 2010-09-12]
Cross-Examination of Expert Shows Main Weakness of Lawsuit Allegedly by Aga Khan - 2010-09-12
So far, the cross-examinations have shown that the whole case is orchestrated by a couple of people. The Plaintiff's case has not shown any access to, nor any evidence from the Imam. The Plaintiff party is therefore now trying to undermine the firm forgery evidence that the defendants have got.
If Mr Gray is to be believed on the authenticity of the January letter and the May Affirmation, then ismailis would also have to believe that the Aga Khan is aging and in bad health and can no longer do a signature that has remained consistent over many decades. We would also have to believe that Imam's signature changed for the January letter and for the May Affirmation, but not for the February letter [which we know is lifted from another document]. And many other completely unbelievable assumptions would have to be admitted by Ismailis if the Letters are believed to be true!
Short History of the Forgeries
Since the infamous phonecall by Mr Shafik Sachedina in January threatening to ruin Mr Nagib Tajdin's reputation, the Defendants have received 3 communications in 2010 that appeared to be signed by the Aga Khan:
[Letter from January 24 Purportedly by Aga Khan]
[Letter from February 18 Purportedly Signed by Aga Khan]
[Affirmation from May 12 Purportedly by Aga Khan]
A closer look at the above communications revealed large discrepancies in content, format and in signature compared to all known communications of the Aga Khan. When defendants asked questions, no direct contact was allowed with the Aga Khan, no Farman or relevant constitutional clause was shown, and no clarification was given to the defendants, which prompted the defendants to contact 3 different experts and to get 5 different expert reports all of which concurred that the Aga Khan did not sign these communications. None of the experts contacted by the defendants showed any doubt that these are forgeries.
[Quebec Expert report that signature on January letter is not of the Aga Khan]
[US Expert report that signature on January letter is not of the Aga Khan]
[ Ontario Expert Affidavit]
[Ontario Expert report on January letter]
[Ontario Expert report on February latter]
[Ontario Expert report on May Affirmation]
As the lawsuit advanced, it became obvious that the Plaintiff party has no access to the Imam, and is using their immense resources and influence to make many legal manoeuvres to avoid presenting any direct evidence from the Aga Khan. In fact, the forged letter was used as a tool to ruin the Defendants' reputation in public, but it was not put in court as evidence. The forged letter was actually first presented to the court by the defendants.
During the cross-examinations for summary Judgement, it became amply obvious, from Mr. Gray's Questions as well as from Mr Sachedina and Mr. Bhaloo's answers that they did not represent the Aga Khan, the beloved Imam of the Ismailis.
And therefore, in the absence of any genuine new instruction from the Imam, Defendants are bound by their allegiance to follow the Imam's Farmans, the Ismaili Constitution, as well as the Imam's direct instruction in Mehmani which are known to be authentically from the Imam and in no way support the Plaintiff Party's stance.
Expert's Cross Examination
To counter the damage done to the Plaintiff's case by the above-mentioned cross-examinations, Mr Gray chose to examine, two weeks later, the Defendant's forensic expert Mr Ospreay. This examination clearly highlights that Mr Gray has no access to the Aga Khan, that Mr Gray shows very little respect towards the Aga Khan, and that Mr. Gray does not know the Aga Khan very well.
The Aga Khan is alive and well. Why waste time on a counter-expertise?
Mr Gray asked his own expert, not to show that the signatures are authentic, not to render any conclusion, but rather just to cast some doubt on the defendants' expertise. If Mr Gray had access to the Aga Khan, would he need to cast doubt on the expertise? He could instead destroy it by having the Aga Khan say in person that he signed the letters. And both defendants would immediately fold.
Mr Gray did not provide any authentic documents for his own expert to examine.
If Mr Gray actually represented the Aga Khan, he would have had access to many original signed documents from the Aga Khan. He could have gotten a real counter-expertise to actually conclude on the authenticity of the signatures. He could have had access to undisputed treaties signed by the Aga Khan in front of large audiences. Instead, he only got an expert to cast some doubt.
Defendants will not provide originals to Mr Gray
The Defendants refuse to give the originals of the forged letters to Mr Gray, as they cannot allow anyone to tamper with the original evidence of forgery. Forgery is a criminal offense in most of the countries. Why would the Plaintiff party ask for originals from the defendants, other than to get the forged documents out of the hands of the Defendants?
Similarities or Dissimilarities?
When a signature has remained consistent over many decades, it is very concerning when obvious dissimilarities are observed in a questioned signature. Obviously, fraud can only be discovered by analyzing dissimilarities, not similarities which are bound to happen since the forger is imitating the signature to the best of his ability. Furthermore, the dissimilarities in this case include a less fluid, more hesitant signature with the pen being lifted up many times, whereas the Aga Khan's known signatures are always fluid.
January and May signatures are similar
Mr Ospreay says that the dissimilarities found in the May signature are also present in the January signature. This leads Mr Gray to forward the conclusion that the same person probably wrote both signatures. The defendants agree, that it is highly possible that the same forger forged both signatures, they have never denied this.
Mr Gray admits 2 of the signatures are different from Aga Khan's Known Signatures
By asking a line of questions about why a signature could have changed, even Mr Gray admits that the signature on the January letter as well as on the May Affirmation are different from the Aga Khan's known signatures. Now, Mr Gray has to try to find an explanation for the differences in these signatures.
Mr Gray insists on Imam's Old Age and Bad health.
Mr Gray has been trying to advance the hypothesis that the Aga Khan's signature has changed because of old age and a 2-year old shoulder accident. But his own witness Mr Sachedina does not support Mr. Gray on this conclusion! Mr Gray has not shown any evidence that the Aga Khan is suffering from any ailment that prevents him from signing as usual, he is just making disrespectful assumptions that everyone denies!
In a short phone interview, one defendant said that he has had the opportunity to take close photos and videos of the Imam in 3 or 4 different countries after the shoulder injury happened and has seen that Imam is in perfect control of his hand and fingers.
Aga Khan has a consistent signature.
Mr Gray also tried to show that signatures naturally evolve and that the Aga Khan's signature could have evolved since the sample signatures were written. However, the expert Mr Ospreay pointed out in his affidavit that although it is normal for some people's signatures to vary, in the case of the Aga Khan, his signature has had very little variance over many decades.
Betrayed by the Second letter
The second forged letter, dated February, was shown to be a print on unusual paper and not an actual handwritten sample. Now, a quick comparison even by a layman of this second signature with the two others shows that this February signature is consistent with all the other known authentic signatures of the Aga Khan.
Now, even if one is to assume for a moment that the three letters are not forged, how is it then possible that the January and the May Signatures are affected by ailments and dissimilarities but the February signature is not affected by these?
Weakened Position
Heritage News therefore finds that the cross-examination of Mr Ospreay only shows more clearly that Mr Gray has no new credible evidence to present, and that he has no direct access to the Aga Khan to clear up the forgery issue. This gives more credibility to the Defendants' claim that the whole case is initiated by a usurper and not by the Aga Khan Himself.
Online Book that gathers court materials as well as articles that are currently available for the ongoing 2010 Lawsuit:
Copyright Lawsuit 2010: Online Book of All available Materials
Cross examination Transcripts:
2010-08-09 CROSS-EXAMINATIONS for Summary Judgement Motions
Copyright Lawsuit: Imam Appears for Discovery and Ends the Case - 2010-10-15
2010-10-15: Heritage news was able to speak briefly with the defendants to ask our burning questions: Did the discovery happen? How long? What was accepted by whom? What was not mentioned? What were the main messages? Here are some answers:
- The discovery did happen, Hazar Imam arrived at 10:40am. Mr Gray brought also the real Plaintiffs Sachedina and Manji. {there was no Affidavit from H.H. The Aga Khan in this case which was solely supported by Affidavit from Sachedina and Bhaloo unauthorised by the Imam according to their own sworn replies at previously held Discoveries]
- The meeting lasted a half-hour of which nothing from the Imam was on the record as Mr Gray put everything off record without authorisation from Mr Tajdin..
- Nagib asked no questions. Questions were already given in advance, the main question being was he instructed by the Imam to publish Farmans. Imam said he was looking for competent people in 1992 and he remembered very well the Mehmani. When the book was presented to him, he gave instruction to continue. Imam also said he does not edit his Farmans, he annotates them and all of those can be made available to Alnaz and Nagib if they wish.
- Imam said to put this matter to rest and consent to judgment and later said that it would be nice if allegations of forgery against his staff were withdrawn.
- Imam said "we will work together" and we will meet again.
- Imam said that copies already bought by murids can be kept by them and do not have to be returned.
- Both Nagib Tajdin and Alnaz Jiwa asked for forgiveness more than once for bringing him to that meeting, and each time Imam said everything is forgotten.
- Nagib said he was taking full responsibility for the publication and Alnaz had not participated in the publication, and Imam said he knows.
- The meeting ended with warm greetings and smiles. Imam left happy, saying "we will meet and work together". "Khouda Hafiz".
As users are asking to read the letters from Nagib and Alnaz on the court docket, the latest have been attached on the following link:
Aga Khan Lawsuit: Fraud at Aga Khan Studs - 2000-02-22
Action brought by Mary Charlton - a secretary at the Aga's Irish studs for 27 years - against his bloodstock holding company, the Studs Societe Civile.
But it turns out that the Aga Khan had no hand in mistreating the Plaintiff:
The Aga also appeared to deny having ordered Charlton to be fired because Carnegie continued: "His Highness further instructs me that he did not issue instructions to either Richard Coulton, Frank Faughan or myself or any other person, to take any steps in relation to the termination, or alteration of the terms of, Mrs Charlton's employment."
Read the full Judgment attached below to see:
- How a document forgery was perpetrated by a high ranking agent of the Aga Khan to cover up that agent's own possible involvement in a large fraud.
- How this forgery was done on behalf of the Aga Khan and His Societe Civile.
- How this agent attempted to mislead the Irish High Court in order to prejudice it and divert blame to a secretary
- How this nevertheless became a very long court battle that was made to look like a former secretary was conducting a lawsuit against the Aga Khan.
In this case, where the Aga Khan and his society were the defendants, the Judge said:
"It is a matter of regret that I have had to come to such conclusions. I am
sure that His Highness will be surprised and upset at the manner in which the litigation
has been approached and at how the Orders of the High Court have been dealt with by his
agents on behalf of the Defendant Société. It is most unfortunate in view of the high
regard in which his family, and in particular his grandfather, have always been held in this
country where his name is well remembered annually in the competition for the famous
Aga Khan trophy. This is all the more a matter for regret in a case in which the letters of
praise and commendation of the Plaintiff, written in such gracious terms to the Plaintiff
by His Highness, stand out as a ray of sunshine amid the bleak atmosphere of
confrontation and distrust engendered by the conduct of some of the agents and
employees of the Defendant. I should make clear that no criticism is intended of
Solicitor or Counsel acting on behalf of the Defendant who act on instructions given and
can only divulge such documents as are given to them and cannot be criticised if they
have not been made aware by their own clients of improper, unauthorised and misleading
excisions.
Alnaz Jiwa NOT guilty of Criminal Assault - 2012-05-30
The trial judge held, after reading his judgment for about 35 to 40 minutes, that Jiwa is not guilty. He essentially rejected all of the plaintiff's witnesses' evidence respecting the incident that happened in Unionville JK, going over in details the evidence given by the witnesses.
The trial judge slammed Mehboob Kamadia's evidence the most, "I also find the intervention of Mr. Kamadia to be an important catalyst as to how the events that followed unfolded. ", essentially pointing to him as the cause of the trouble at JK that night, saying that he exaggerated his evidence, gave false statement to police that night, that he speculated in one specified point without any evidence, and held that he was motivated by animosity.
Details and Comments are posted Here
The Judge also said:
"I find that Mr. Jiwa was also a defendant in a civil matter, the plaintiff being either the Iman or agents of the Iman, the spiritual leader of the particular religion of both Mr. Jiwa and Mr. Kara. I find and accept that Mr. Jiwa defended that action.
I find on the evidence that Mr. Jiwa’s defence of this matter caused a number of people in that particular religious community to be offended, as the defence to the action was seen as an affront or challenge to the authority of the Imam. I find there was hostility directed to Mr. Jiwa by Mr. Kara on December the 30th, 2010 as a result of what was perceived to be a challenge by Mr. Jiwa to the authority of the spiritual leader. "
Copyright Lawsuit: Defendants are continuously attacked, assaulted - 2010-12-31
Defendants Nagib Tajdin and Alnaz Jiwa have been continuously attacked and assaulted since the beginning of the Lawsuit.
Verbal and printed attacks against the defendants in Public and in Jamatkhanas are well-known. Reports of physical attacks are now coming to light.
Again, these attacks go against all of Hazar Imam's teachings. In light of the stand of the Imam during the Discovery in October 2010, there is no valid reason for these senseless attacks to continue.
Judgment Acquitting Alnaz Jiwa of Assault - full text of REASONS - 2012-05-30
Information No. 11-00381
ONTARIO COURT OF JUSTICE
5
HER MAJESTY THE QUEEN
v.
ALNAZ JIWA
15
R E A S O N S F O R J U D G M E N T
20
BEFORE THE HONOURABLE JUSTICE W.A. GOREWICH
on May 30, 2012, at NEWMARKET, Ontario
25
APPEARANCES:
30 A. Barkin Counsel for the Crown
M. Syed Counsel for Alnaz Jiwa
1.
WEDNESDAY, MAY 30, 2012
R E A S O N S F O R J U D G M E N T
GOREWICH, J. (Orally):
Alnaz Jiwa is charged that, on the 30th of December 2010, he committed and assault with a weapon on Mansurali Kara.
The Crown called Mansurali Kara, Naushad Jina, Mehboob Kamadia, Baljit Bardai, Salim Bardai, Constable Yee and Azmeena Kara. The defence called Mr. Jiwa.
The issues in this matter revolve around the notions of self defence, excessive force and credibility.
An overview of the scenario is as follows. The setting is a mosque in the Markham area. The complainant was at the mosque at the same time as the accused and confronted the accused as to why he was there. There is evidence the complainant was angry and had to be distracted. There is also evidence the complainant was told by a witness, who testified, that the accused was waiting for him in another room in the mosque. As the complainant was leaving the mosque, there is evidence that either he made a motion of some kind towards the accused, or the accused made a gesture towards him. The complainant, fearing he would be struck, punched
2.
R. v. JIWA Ð REASONS FOR JUDGMENT Ð GOREWICH, J. the accused in a pre-emptive mode, making contact with him. The accused responded by
raising his arm and, in the process, threw a bag containing a plate he was holding, causing it to strike the complainant in the head and resulting in injury that required stitches.
The evidence at trial was lengthy and dealt with many events that took place that night. The following comments and findings are based on my view of the evidence and relevant facts and I will restrict my comments and findings to those areas I have determined to be of most
importance.
I find Mr. Jiwa attended the mosque on December the 30th, 2010 for the purpose of expressing condolences to a bereaved family. I find that Mr. Jiwa was also a defendant in a civil matter, the plaintiff being either the Iman or agents of the Iman, the spiritual leader of the particular religion of both Mr. Jiwa and Mr. Kara. I find and accept that Mr. Jiwa defended that action.
I find on the evidence that Mr. Jiwa’s defence of this matter caused a number of people in that particular religious community to be offended, as the defence to the action was seen as an affront or challenge to the authority of the Imam. I find there was hostility directed to Mr. Jiwa by Mr. Kara on December the 30th, 2010 as a result of what was perceived to be a challenge by Mr. Jiwa to the authority of the
3.
spiritual leader. This is the genesis of the events as they unfolded at the mosque on the evening of December the 30th, 2010.
I make the following findings as to what occurred in the prayer hall. I find the evidence virtually uncontested that Mr. Kara initiated verbal contact with Mr. Jiwa. I find there were two incidents in the prayer hall, the first when Mr. Jiwa was kneeling down and speaking to his bereaved friend and at least was touched on the shoulder by Mr. Kara and rudely told, in essence, that he should not be at the mosque. The second verbal contact was when they were in the prayer line or in separate prayer lines not far from each other. There was a further exchange in the prayer line or lines.
In no uncertain terms Mr. Kara expressed his opposition to Mr. Jiwa about his being there in these verbal contacts. The evidence reflects he, Mr. Kara, was agitated. His views, I find, were expressed in such a vociferous manner that it became necessary for Mr. Kara’s nephew by marriage, Mr. Bardai, a Crown witness, to attend the prayer line in which Mr. Kara was standing and distract him. Mr. Kamadia, another Crown witness, I find also intervened for the purpose of distracting Mr. Kara.
4.
Mr. Kara, spoke quietly and calmly, given the evidence of both Mr. Bardai and Mr. Kamadia. Except for Mr. Kara’s evidence, there is little to illustrate Mr. Jiwa’s aggression in the prayer hall. There is evidence with respect to his verbal response to Mr. Kara’s aggression.
I find Mr. Kara had no authority to tell Mr. Jiwa or anyone else to leave the mosque. I find comments made by Mr. Jiwa to Mr. Kara in response to Mr. Kara’s comments were not threatening, but firmly expressed to Mr. Kara, and that Mr. Jiwa was not about to leave the premises. I also find the intervention of Mr. Kamadia to be an important catalyst as to how the events that followed unfolded. As noted above, I find Mr. Kara was agitated to such an extent that he had to be distracted and pacified, engaging the words of both Mr. Bardai and Mr. Kamadia respectively.
20
The entire episode, including the throwing of the plate by Mr. Jiwa, was initiated by Mr. Kara, although as noted, Mr. Kamadia was a catalyst after the initial sparring. I found Mr. Kamadia to be less than objective in his evidence. I also find on the evidence he harboured at least a dislike for Mr. Jiwa. Mr. Kamadia did tell Mr. Kara, based on nothing but speculation, that Mr. Jiwa was waiting for him outside the prayer hall, after prayers had been completed. On the evidence of Mr. Kamadia
5.
himself, I find this information was not accurate, but it did cause Mr. Kara to be on guard for what he perceived to be an imminent impending threat of a confrontation of some sort between Mr. Kara and Mr. Jiwa. This was of such concern that Mr. Kara requested Mr. Kamadia to escort himself and his wife from the prayer hall. It is not clear whether Mr. Kamadia did in fact escort them out, but I do accept the evidence that such a request was made. I find Mr. Jiwa, based on his own evidence and indeed the evidence that came from the mouths of Crown witnesses, that no conclusion could be drawn that Mr. Jiwa was waiting for anyone. The evidence is Mr. Jiwa was standing in a room, outside the prayer hall, speaking to Mr. Ebrahim after he left the prayer hall and had purchased food.
I find the words used by Mr. Kara in his description of Mr. Jiwa while he was standing and speaking to Mr. Ebrahim does not comport with the evidence of other witnesses and indeed, in my view, is exaggerated to a great degree and is inaccurate in any event. I do not accept the evidence of Mr. Kara that Mr. Jiwa was “aggressive”, “ready to pounce”, and “looked like he was ready to ambush” him. Mr. Kara, in making his observations, also noted his wife speak to Mr. Jiwa outside the prayer hall. The description by Mr. Kara of Mr. Jiwa is not borne out by the evidence of Mr. Kara’s wife, or
6.
others. I find Mr. Kara was bracing himself for something based on what Mr. Kamadia had told him earlier and based on his own sense of the effect his words had on Mr. Jiwa. Mr. Jiwa, on his own evidence and on the evidence of others, was
talking to Mr. Ebrahim. Mr. Jiwa testified he was speaking to Mr. Ebrahim about
incorporations, et cetera. I accept that evidence as being logical and consistent.
10
I find that when Mr. Jiwa left the prayer hall he made a decision he was not going to leave and purchased a plate of food that was placed in a plastic bag that he was holding while he was speaking to Mr. Ebrahim.
15
The actual incident, and parts of the actual incident, were seen and testified to by several people, including the two principals in this matter, that being of course Mr. Kara and Mr. Jiwa. It was Mr. Kara’s view that Mr. Jiwa was going to hit him, so he struck Mr. Jiwa first to throw him off balance. I find Mr. Kara did throw the first punch in a series of punches he directed at Mr. Jiwa, but did not land any punches on the face of Mr. Jiwa as he intended, although Mr. Kara testified that he did. Mr. Jiwa testified he was not struck in the face. I find the evidence of Mr. Kara that the plate was thrown like a missile and the congregation was trying to hold back Mr. Jiwa an exaggeration. Mr. Kara did hit the pillar, located behind Mr.
7.
R. v. JIWA Ð REASONS FOR JUDGMENT Ð GOREWICH, J.
Jiwa, with his fist and injured it as a result.
The question arises as to whether Mr. Jiwa did anything to cause Mr. Kara to think he was going to be struck or whether, as Mr. Jiwa testified, Mr. Kara, who had gone past him, came back and punched at Mr. Jiwa. I find the evidence of Mr. and Mrs. Bardai is not of assistance as neither principal in the matter speaks of the grabbing of Mr. Kara’s collar as the Bardais do, more will be said about this later. Given Mr. Kara’s anger, given he did not want Mr. Jiwa in the mosque, given as I have found on the evidence that Mr. Kamadia, in my view, caused Mr. Kara to fear Mr. Jiwa by telling him that Mr. Jiwa was waiting for him, I find it was Mr. Kara who moved towards Mr. Jiwa to strike him as he testified, in a pre-emptive mode,
notwithstanding the fact that Mr. Jiwa was not making threatening gestures to Mr. Kara, although it was perceived as such by Mr. Kara. Given Mr. Kara’s forehead and face were injured, I find Mr. Kara’s hand or fist was injured, not by being struck by the plate, but when he hit the pillar while striking at Mr. Jiwa and I do accept Mrs. Bardai’s evidence on this point.
On his own evidence, Mr. Kara agreed that Mr. Jiwa at no time made physical contact with him prior to Mr. Kara striking him. Even though Mr. Kara spoke of Mr. Jiwa’s challenging him to fight, I find if those words were uttered they
8.
were not accompanied by actions. I find the evidence of Mr. Jina, another Crown witness, speaks of the plate being thrown by Mr. Jiwa. Mr. Jina testified to hearing comments by both, he could not comment on the content of those comments, he did not see Mr. Kara hit Mr. Jiwa. Mr. Jina, in my view, saw and heard only a very brief portion of what transpired. His evidence adds very little to the scenario under review.
10
I find the evidence of Mr. Kamadia shows Mr. Kara was upset, agitated and needed calming in reference to Mr. Jiwa in the prayer hall. Mr. Kamadia confirms that Mr. Jiwa was speaking to Mr. Ebrahim, as Mr. Jiwa testified. He reports that Mr. Jiwa looked angry. He confirmed he told Mr. Kara not to leave the prayer room alone, and he did walk behind Mr. Kara and his wife from the prayer hall to where Mr. Jiwa was standing. I find Mr. Kamadia was not paying particular attention as he was speaking to people as he was leaving the prayer hall. He did confirm, and I accept, that Mrs. Kara stopped and spoke to Mr. Jiwa outside the prayer hall. Mr. Kamadia did not see Mr. Kara initiate contact with Mr. Jiwa. At the time of the physical altercation, Mr. Kamadia’s evidence is not of assistance as he did not observe a key activity, that being Mr. Kara hitting Mr. Jiwa. I do not find that Mr. Kamadia heard Mr. Jiwa challenge Mr. Kara to a fight as he told the court. I make this finding, as this was not
9.
contained in his statement to the police. I find crucial in his evidence, setting a tone which is continuous in his evidence, and is perhaps based on the history of bad feelings between them, that Mr. Kamadia chose to believe that Mr. Jiwa was waiting for Mr. Kara for a confrontation and he communicated that to Mr. Kara. He did this notwithstanding the fact he testified he saw Mr. Jiwa and Mr. Ebrahim standing and talking at the archway. He told this court that when he said Mr. Jiwa was waiting, he was just guessing. He did not tell Mr. Kara he was just guessing.
Also important to note in this analysis is that Mr. Kamadia did not know why or did not know Mr. Jiwa was at the mosque to pay his respects to a bereaved friend. He did not know why he was there. The evidence is Mr. Jiwa went to the mosque for prayer and humanitarian reasons. I find Mr. Kamadia’s intervention placed both Mr. Kara and Mr. Jiwa in precarious positions. Mr. Kara was caused to think he was going to be attacked and Mr. Jiwa was placed in a position of having later to respond to the actions of Mr. Kara. Mr. Kamadia’s evidence, I find, is inconsistent and problematic in several important aspects as to when he left the prayer hall; and was it with the Karas or was it a few minutes later as he told the police? Did he see Mrs. Kara stop and speak to Mr. Jiwa, as he testified on one occasion, or was he unable to
10.
see if she did that as he testified on another? I find he exaggerated when he told the police that Mr. Jiwa threw the plate viciously, targeting the victim’s face. I find that comment was made to the police to put Mr. Jiwa in the worst possible light. He did not see who was hit, he did not see what preceded Mr. Jiwa throwing the plate, and it is clear on the evidence that Mr. Kamadia harboured a dislike for Mr. Jiwa, originating many years ago. His dislike for Mr. Jiwa is important to consider in this matter as I find it coloured his perception and objectivity in his evidence. He was not a victim and yet he injected himself as a quasi victim in a dispute that was not even his. I base this on comments to the police that he would not want Mr. Jiwa as a friend. Further he told the police, “No one wants to sit down beside him and look at his face, he is repulsive.” I find he did make those comments.
20
Mr. Kamadia also testified Mr. Jiwa threatened to assault him, evidence I reject. I find those comments are reflective of his personal views vis-a-vis Mr. Jiwa and, as such, his evidence must be viewed with extreme caution. I find his evidence with regard to the actual subject matter, that is the assault with a weapon, is anything but objective and cannot be relied on. He did not see who was struck, yet he told the police that Mr. Jiwa deliberately targeted the face of Mr. Kara. Mr. Kamadia was in no
11.
position to honestly make that statement and I so find.
The evidence of Mr. and Mrs. Bardai makes reference to Mr. Jiwa grabbing the collar of Mr. Kara. Neither Mr. Kara nor Mr. Jiwa, the two principals in this matter, make any reference to this in their evidence. In view of this conflict between the Bardais’ evidence and the two principals, I cannot conclude this happened. Mr. Bardai testified he had to calm Mr. Kara, his wife’s uncle. He reluctantly agreed that Mr. Kara was the aggressor, although he did not see how the argument started. His wife testified she saw Mr. Kara throw a punch at Mr. Jiwa. Mr. Bardai did not, but they both saw Mr. Jiwa throw the plate or the bag containing the plate. Mrs. Bardai did not hear the words exchanged. Even on this evidence from Crown witnesses, I find Mr. Kara was the aggressor and made the first physical contact against Mr. Jiwa prior to being struck by the bag containing the plate. Mrs. Bardai said it was before Mr. Jiwa threw the plate, yet she testified she saw him transfer the bag from his left to his right hand and launch it in an overhand motion. What their collective evidence does reflect in the end is that Mr. Kara was so angry at the onset that he had to be distracted and later, after Mr. Kara punched at Mr. Jiwa, and that of course Mr. Jiwa did throw the bag at Mr. Kara. Mrs. Bardai’s evidence which I accept on this point explained,
12.
why Mr. Kara broke his hand as she saw his fist hit the pillar behind Mr. Jiwa, when he threw a punch at Mr. Jiwa.
I find Mrs. Kara’s evidence confirms her husband was hit by a plate, but only after the fact as she was not sure what Mr. Jiwa did. I find she did stop briefly to speak to Mr. Jiwa as she passed him leaving the prayer hall. While the Crown submits her evidence was for the most part consistent, I cannot be certain from where her memory was derived. She did not give a statement to the police until some 15 months after the event, in fact, only a day or two before she testified. She also agreed that she discussed the matter in detail with her husband in the 15 months that passed between the event and her testimony. I find her evidence is of little assistance overall as her memory may well have been reconstructed from detailed discussions with her husband, a principal in this matter. This is not a criticism of her, as it would be natural to discuss the situation, but I find the fact that no statement was taken from her until during the trial and her discussions with her husband in the intervening 15 months is problematic in giving her evidence the weight or importance the Crown asks me to give it. It is of negligible weight.
30
13.
his credibility is made using the test in R. v. W.D. I find on his evidence that Mr. Jiwa was
at the mosque for a proper purpose. Mr. Kara and Mr. Jiwa did not know each other prior to this evening. Mr. Kamadia was known to Mr. Jiwa and I find he had animus directed at Mr. Jiwa, evidenced amongst other things on Mr. Kamadia’s comment to the police that Mr. Jiwa was waging a battle against the entire Islamic community. I find on the evidence Mr. Jiwa was a controversial figure and received much notoriety in that particular religious community as a result of his defence of a law suit, referred to above.
Without going through each aspect of Mr. Jiwa’s evidence, I accept his reason for being at the mosque, that being to offer condolences to a bereaved friend and to pray. I find on his evidence, and the evidence of others, that he was accosted by Mr. Kara who, without authority, challenged Mr. Jiwa’s right to be at the mosque. I find on his evidence and the evidence of Mr. Kamadia and Mr. Bardai, extreme unpleasantries were exchanged with Mr. Kara being the aggressor. Given the tenor of Mr. Kara’s aggression, I accept Mr. Jiwa’s evidence that Mr. Kara uttered a threat to break his teeth, a threat Mr. Jiwa did not take seriously at the time. It is consistent with Mr. Kara’s tirade. Mr. Kara’s aggression was to such an extent that Mr. Kamadia and Mr. Bardai had to pacify and
14.
distract Mr. Kara while he was at or near the prayer line Mr. Jiwa was in. I accept the evidence of Mr. Jiwa that he left the prayer hall, purchased food that was placed in a bag, and went to stand in an ante room outside the prayer hall. I accept his evidence he stood and spoke to Mr. Ibriham in the foyer area for a period of time. I do not find, on anyone’s evidence, he was waiting for Mr. Kara to come through the area where he was standing to further the argument with Mr. Kara. As per the evidence of Mr. Kamadia, the fact he thought Mr. Jiwa was waiting for Mr. Kara was pure speculation and I find that information, which was communicated to Mr. Kara, caused Mr. Kara to be concerned. I accept and find that Mr. Jiwa properly exercised his right to be in the mosque and, as well on the evidence, he was behaving in a proper fashion. I find a further difficulty developed while he was standing near the archway outside the prayer hall after Mrs. Kara briefly exchanged a greeting with him and Mr. Kara moved a few steps beyond. I accept Mr. Jiwa’s evidence that Mr. Kara went past him a few feet, he came back towards him and said something. It is consistent with Mr. Jiwa’s behaviour at this point and I accept his evidence that he conveyed to Mr. Kara the thought that he did not want any problems. I find the evidence that Mr. Kara struck Mr. Jiwa from two to five times an estimate and does not bear negatively on the credibility of Mr. Jiwa. The evidence is it
15.
. happened so fast. I accept the evidence Mr. Jiwa was not injured as a result of Mr. Kara punching him.
To recap, I find that Mr. Kara, thinking Mr. Jiwa was going to strike him, moved towards Mr. Jiwa and struck him first. I find Mr. Kara’s hand was injured as he hit his hand on the pillar near where Mr. Jiwa was standing. In response to this action by Mr. Kara, I accept the explanation of Mr. Jiwa that he instinctively raised his hand, which was holding the plate of food and threw it at Mr. Kara who had, in effect, attacked him. Mr. Jiwa said it was self-defence, it was a reflex action, it was instinctive. The descriptions of Mr. Jiwa’s actions by the witnesses collectively and accurately in general terms illustrate a motion of throwing, which is not in dispute. I accept Mr. Jiwa’s actions were instinctive and designed to ward off the advance by Mr. Kara. In assessing credibility on this point, I ask: who initiated this, how much time was involved in this particular aspect of the matter, how much time should be considered for Mr. Jiwa to consider his own response, was he frightened, and did he realize he had the bag containing the plate in his hand? The quick and simple answers are: I do not find Mr. Jiwa made any approach towards Mr. Kara before Mr. Kara approached him, I find it was Mr. Kara who initiated this last confrontation, as he did the confrontations that
16.
preceded it, I find on the evidence of several people the passage of time was but for a few seconds for these events to unfold, and I find in the circumstances there is nothing to refute the fact that Mr. Jiwa was frightened.
5
Further I find nothing to diminish Mr. Jiwa’s credibility, when he spoke to the police, about complaining about the actions of Mr. Kara and not giving them a statement per se about his own participation. He knew his rights, vis-a-vis not having to give a statement, and he also felt he had a legitimate complaint about being attacked by Mr. Kara. No adverse inference about his credibility will be drawn on that issue. It may be that Mr. Jiwa was inaccurate as to how many times Mr. Kara struck him, but I find it is significant that Mr. Kara did strike him first. I find Mr. Jiwa’s evidence that he struck back or threw the bag in self defence, or in a reflexive action or instinctively not inconsistent one with the other. I find he did strike back with the hand that held the plate of food and the plate, it did strike Mr. Kara in the head, causing him to be cut. It is clear Mr. Jiwa did not go to the mosque looking for any kind of confrontation.
17.
R. v. JIWA Ð REASONS FOR JUDGMENT Ð GOREWICH, J. necessary to defend against the original assault. I am not thusly satisfied. The first area to address is the scenario. Mr. Jiwa was clearly placed in an untenable position by the verbal onslaught, instigated by Mr. Kara, followed by being approached by Mr. Kara who was of the view that Mr. Jiwa was going to hit him. Thinking that was going to happen, Mr. Kara took a pre-emptive action and struck Mr. Jiwa one or more times. Mr. Jiwa responded by swinging the bag he was holding, which contained a plate of food and, in the process, caused the plate of food to be hurled at Mr. Kara, and as I have noted, the plate striking Mr. Kara on the forehead.
15
Firstly, in dealing with credibility I accept the evidence of Mr. Jiwa. Engaging a test of R. v. W.D., his evidence is credible in my view for the reasons expressed amply above. This does not end the matter, as the issue of excessive force is also a key issue before the court. The Court of Appeal, in R. v. Antley, [1963] O.J. No. 853, captures the essence of the issue before me. At paragraph 10 of that decision, Roach J.A., after expressing his views that he believed the appellant, said:
“A person who is set upon by another need not be reduced to a state of frenzy in resisting the attack before self defence is available to him as a defence to a charge of assault. He may have had a real and justifiable fear of the
18.
impending danger without losing his self control and in that state of mind in using force to resist force so long as it is not in excess of what is necessary in these circumstances.”
In the Antley case, as in the case at bar, the evidence around the assault proper occurred fast and suddenly. I specifically find that Mr. Jiwa was placed in that situation by Mr. Kara and, in the words of Roach J.A., “In the agony of the situation in which he,” and I insert the words or the name, Mr. Jiwa, “was placed by the attitude and conduct of the complainant.”
Roach J.A. in his judgment also refers to the 1928 Alberta Supreme Court decision in R. v. Ogal, 50 C.C.C. 71 at pages 73 and 74, where Hyndman J.A. stated:
“It was of course not possible to measure with nicety just the amount of force necessary to protect himself under all the attendant circumstances.”
This exact principle has been cited and since that time since that defence has been raised. The cases also speak to the issue that it is the force itself and not the consequences of the force used which is justified if the limiting conditions of the statute are met. As noted in paragraphs 23 and 24 of R. v. Kandola, a 1993 British Columbia Court of Appeal decision:
“The force which is justified under Section
34(1), if all conditions for such justification
19.
are met, is force which has been intentionally
applied, in the sense that it results from what
the law recognizes as a volitional act.” The case also gives clarity to the principle
that one cannot weigh the nicety or the amount of the force used to repel an attack, when at paragraph 28 the court notes:
“It would be inconsistent with this principle to expect a person who is under attack of sufficient magnitude to warrant resort to deadly force, even though deadly intent is present, to stop and reflect upon the risk of deadly consequences which might result from taking such defensive action.”
I find Mr. Jiwa was in that position. At the risk of being redundant, he did not initiate the verbal confrontations, he did not initiate the physical altercation with Mr. Kara, and he responded instantly to the advance of Mr. Kara in the fashion he described, instinctively and in self defence, and using sufficient force to repel the attack. As noted in Ogal, noted above, it is not the consequences of the force used.
25
Stand up please, Mr. Jiwa. Yes, for the reasons expressed I find you not guilty of the charge. Thank you.
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Court Gives Summary Judgement in Aga Khan Copyright Case - 2011-01-10
The PDF text of the Judgment and Reasons for Judgment are placed on the Online Book for the Aga Khan Copyright Lawsuit:
Proof of consent - The Judge erred in Aga Khan Copyright Case, says Oxford Professor and IP expert - 2011-01-31
Who Must Show Consent in an Intellectual Property Infringement Case? Is the question asked by Oxford Professor and Intellectual Property Expert David Vaver.
Extract: "..a plaintiff who wants to show infringement of any intellectual property right must say that (1) the defendant is doing something only I am entitled to do, and (2) I have not given him any consent to do that. The plaintiff cannot get away with just saying (1) the defendant is doing something only I am entitled to do, but (2) I am not telling him whether I gave him consent or not: he has to tell me whether I did or not. That is neither good sense nor good law."
Purported "Talika" in JK Tonight - 2011-01-21
A purported Talika is being read out JK's around the world Tonight:
- With reference to Summary Judgment
- With strong language resembling Sachedina's , but not resembling any previous Talika of the Imam.
- With wordings of the January 24, 2010 Letter purportedly by Hazar Imam (Recall that questioned letter where it is said that His signature, which had remained steady for decades had now become very tentative and distorted because of old age and an old healed injury.)
- No comments from the defendants Tajdin or Jiwa yet, except that they said by phone that they are comforted by the loving words of the Imam on October 15th at the discovery, and that do not match the tone or contents of this purported "Talika".
- Knowing the offensive behaviour of SS and MM against the Imam at the Discovery, this "Talika" was expected said one of the defendants to The Heritage. There is no doubt this is a last ditch attempt to cover their mistakes.
- After breaking the sanctity of Hazar Imam's signature, that of the Mehmani ceremony and now openly the sanctity of the "Talika", one may wonder where these people will stop and how important is the real issue behind this litigation to warrant people going to this extent.
Both defendants have promised that in due time they will comment on this litigation.
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. He said he remembered very well the Mehmani and the presentation of the first Farman book to him in 1992 and his instructions to continue because these Farman books were needed as he wanted the Farmans to be translated in various languages such as French, Farsi etc. Gray wanted to incorporate in the Consent that there was "Infringement", something completely incoherent with the Imam having recognised that the Farmans had been published by the defendants with his instructions.
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.
Appeal Contents
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.