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Copyright Lawsuit: Defenses Glorifying the Aga Khan filed in federal Court - 2010-04-29

Date: 
Thursday, 2010, April 29
Location: 
Source: 
Heritage News
20100429-court-filings.jpg

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

Latest News Comments

AttachmentSize
Tajdin Defence Apr 29.10.pdf491.02 KB
Jiwa AK Defence Apr 29.10.pdf543.82 KB

Comments

A Letter sent as received.

A Letter sent as received. TO
Noordin Nanji Chairman of the Aga Khan International Conciliation & Arbitration Board
Nazmin Kassam Chair of National Conciliation and Arbitration Board UK,
Malik Talib, President of Council of Canada
Amin Mawji President Council UK,
Shafik Sachedina & cc to NCAB, LIF and ICAB

I await your responses regarding especially your unilateral rulings, and not giving the full Ismaili constitution and Farmans.

As you know, the European court has ruled in favour of Mr Hashwani's application (link below). You gave evidence in this case. This case involves a business dispute between two Ismailies. Their arbitration clause provided for Arbitration in London and for all three arbitrators to be “respected members of the Ismaili community and holders of high office within the community”.

“Hashwani said the issues in dispute simply require a suitably qualified lawyer, of any religion, and of his problems of finding an arbitrator from the Ismaili community reinforces this. His lawyer, Sarosh Zaiwalla, says: "This is a commercial dispute which in reality only required an experienced lawyer – there was no question of religion. Hashwani was forced to seek to appoint a non-Ismaili arbitrator because, after 20 years of legal proceedings, that was the only way he could get justice".

Noordin and Nazmin do you blame Hashwani? Mr Nanji, putting yourself in Mr Hashwani’s position, would you have confidence in you (ICAB-NCAB:, Knowing that;

1 You on the one hand say you have no jurisdiction but on the other hand you make rulings in the same case in which you say you have no jurisdiction.
2 you are blocking our constitution, with no dialogue, no mediation, and
3 You are blocking of farmans.
4 You do not do what you say in your own affidavit. You say that while the Ismaili dispute resolution process followed by the CAB System respects the religious principles and values of the community, it is always within the confines of the applicable local law.” Read your affidavit below.

Should you now resign ? You are not doing what you say ? and You are not doing what Hazar Imam says you must do in Farmans and our constitution.

Are you not making a mockery of our ICAB and NCABS saying one thing but doing the very opposite. Thereby do you agree you are also damaging the respect, credibility, image and standing of our community and particularly our national and international conciliation and arbitration Boards. Another example, of what you say in your affidavit but do not do. Do you agree you are not ?

“The primary objective of the CAB System is to assist Ismailis to resolve disputes in an equitable, speedy, confidential, cost effective, amicable and constructive manner and in an environment that is culturally sensitive. Processes are designed to operate in an equitable manner. Moreover, the Boards, whether arbitrating or mediating, are required to operate in accordance with applicable local laws. In arbitrating any dispute, a panel appointed by one of the Boards will apply the national laws applicable to the relevant dispute, not any "religious" law.” Read your affidavit

Re : Affidavit of Noordin Nanji - Chairman of ICAB

You intervened and gave an affidavit as a witness in the case of Jivraj against Hashwani. Mr Nanji why did no other faith based communities join you ? Especially as we are a part of the interfaith dialogue & Why did you favour one side?

Why was ICAB and NCAB not able to finding a respectable and fair Ismaili Arbitrator, when you with Mr M Keshavjee have been spending huge sums of money in training Ismaili arbitrators for well over 12 years !

Are these also not compelling reasons for change and resignations ?

"Some extracts from the witness affidavit of Noordin Nanji in the case between Hashwani v Jivraj

3.2 The 1986 [Ismaili] Constitution established a dispute resolution system whereby Conciliation and Arbitration Boards would operate at both the national and international level. The system operates in 17 jurisdictions around the world. In some countries, notably India and Kenya, the decisions of such Boards, particularly in matrimonial and personal law matters, though reviewable by the courts, are recognised by the law.

3.7 The primary objective of the CAB System is to assist Ismailis to resolve disputes in an equitable, speedy, confidential, cost effective, amicable and constructive manner and in an environment that is culturally sensitive. Processes are designed to operate in an equitable manner. Moreover, the Boards, whether arbitrating or mediating, are required to operate in accordance with applicable local laws. In arbitrating any dispute, a panel appointed by one of the Boards will apply the national laws applicable to the relevant dispute, not any "religious" law.

5.2 Once a dispute arises, it is the practice of the Boards first to attempt to resolve any dispute by way of mediation or conciliation rather than arbitration, even in cases where the parties have referred to arbitration only in their agreement. Rules of Conciliation have been adopted formally by the Boards for disputes resolved by way of conciliation.

5.5 The experience of the Boards is that more than 99% of disputes referred to the Boards are dealt with by way of mediation or conciliation. It is only a handful of cases that are dealt with by way of arbitration.

5.6 It is strongly felt within the community that one of the reasons for this high incidence of mediation and conciliation is the fact that the parties, and indeed the members of the community, have confidence that their rights will not be compromised and that a fair and equitable resolution of their dispute will be achieved through mediation or conciliation by the Boards.

6.6 Muslim ethics, custom and practice strongly encourage the amicable settlement of disputes that may arise in the community between believers. It is recommended that, when a conflict arises between members in the community, attempts should be made to find a peaceful solution either through mediation or impartial conciliation or arbitration between willing parties. Voluntary and impartial conciliation and arbitration for the amicable resolution of disputes is a deeply embedded practice in the Ismaili community going back 14 centuries ... It is from that long tradition that the present CAB System has emerged.

6.8 In essence, it is believed in the Ismaili community, as in the broader Muslim community, that when a problem occurs between brothers, the people around should intervene to solve it, and they should pursue all means in order to make peace between them. That brothers in religion should be willing to forgive each other and to reconcile their disagreements is testified to in a large number of Prophetic traditions, both the Sunni and the Shia, as well as in the traditions of the Shia Imams. For instance, Imam Ali, the first Shia Imam, has said:

"Do not separate yourself from your brother unless you have exhausted every approach in trying to put things right with him. ... Do not be harsh with your brother out of suspicion, and do not separate from him without first having tried to reason with him... Seek reconciliation with your brother, even if he throws dust at you." (The Sayings and Wisdom of Hazrat Ali, published in England, 1994)

6.12 In sum, therefore, the broader Muslim tradition, and specifically the Shia Ismaili Muslim tradition, defines and fosters an ethos for amicable dispute resolution that, unlike the "secular" litigation culture, is non-adversarial. The notion of the winner and the vanquished, where the winner may take all, is completely alien to the teachings of the Ismaili Imams..”

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