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Aga Khan insists: ‘I am the plaintiff’

|Written By Michael McKiernan

The Aga Khan has stepped up his fight to stop a Toronto lawyer from distributing his religious teachings with a sworn statement that he is in fact behind the copyright action.

In his reply to lawyer Alnaz Jiwa’s statement of defence (see "Lawyer sued by Aga Khan fights back"), the hereditary imam refers to a notarized statement sent by e-mail to Jiwa and his co-accused, Nagib Tajdin, a

Canadian based in Nairobi.

The statement was signed before a notary public on May 12 in Boston.

“I am the plaintiff,” the affirmation reads. “I have personally reviewed and approved the contents of the statement of claim filed with the court in this case.”

The reply to Jiwa’s statement of defence also hammers home the same message.

“As the sole author of the literary works reproduced in the infringing materials, the Aga Khan is the only plaintiff in the present action. All statements made in the statement of claim are those of the plaintiff,” it reads.

Brian Gray, the senior partner at Ogilvy Renault LLP who is acting for the Aga Khan in the copyright action, says the statement marks an attempt to convince the defendants that the Ismaili Muslim hereditary imam is behind the action after both men expressed doubts in their statements of defence. Jiwa declined to comment when reached by Law Times.

“We would like to settle the matter, obviously,” Gray says. “They have not offered to settle the matter based on the affirmation we sent to them.”

The replies were filed just days before the Aga Khan visited Toronto for the launch of the new Ismaili Centre in Toronto. Prime Minister Stephen Harper also made him an honourary Canadian citizen, the fifth person ever to receive such recognition, for his humanitarian work.

Ismailis, including the two defendants, belong to a branch of Islam that accepts the Aga Khan, who traces his lineage all the way back to a cousin of the Prophet Muhammad, as its spiritual leader.

Gray had the opportunity to meet his client in the flesh during the Toronto visit.'

“I spoke to him and shook his hand,” he says. “I had spoken to him on the telephone before but I have actually met him in person now. He told me again he authorized the lawsuit and he told me very clearly that he didn’t consent to what they were doing.”

But the defendants didn’t receive that same honour, according to the Aga Khan’s reply to Tajdin’s defence. In it, he rejected the idea of a personal meeting as a precondition to the defendants ceasing their activities.

“The plaintiff has had two letters rejected which could have settled the matter between himself and the defendants and therefore the plaintiff does not believe that there is any reason to meet,” it reads.

The statement of claim, lodged in April this year (see "Lawyer sued by Aga Khan keeping the faith"), accused Jiwa and Tajdin of infringing the Aga Khan’s copyright and moral rights by compiling and selling a book of collected Farmans, a type of religious message delivered by the Ismaili leader to his followers.

In their defences, Tajdin and Jiwa claimed the Aga Khan had given them permission to continue their work at a ceremony in 1992 in Montreal after presenting him with a copy of the book. But the Aga Khan denies that in his reply to Tajdin. None of the allegations have been proven in court.

“On August 15, 1992, the plaintiff had sight of the books in question but had no knowledge of the contents . . . and therefore could not have consented to any prior or future publication,” the Aga Khan said in his reply. “This is because the plaintiff did not actually retain the books, which were carried away either by the defendants or their agents after the meeting.”

Jiwa argued in his defence that by encouraging his followers to abide by and listen to his teachings, the Aga Khan had “impliedly given his consent” to allow Ismailis access to the Farmans, a claim the religious leader denies.

“The plaintiff denies that there is a tradition of distributing or publishing copies of Farmans and states that all Ismailis have access to Farmans” at Jamatkhanas, the meeting places of Ismailis, he said in his reply.

Jiwa also defended his actions by saying none of the books were for profit and that he had personally vetted every recipient to ensure they were Ismaili. He also claimed to have never received warning to cease distributing the books.

However, those claims held no water with the Aga Khan, who said Jiwa’s “intentions or motivations” had no legal relevance and repeated his desire that he halt his activities.

Tajdin went even further in his statement of defence, alleging that letters he had received from the Aga Khan were forgeries and noting he had sent them to two “reputed and well-known forensic experts.”

He claimed both had found evidence of forgery and called for a “full inquiry” into the matter, accusing senior Ismailis of leading a “slander campaign” against him.

“If anything, the defendant’s allegations of forgery may be considered slander and defamation against the plaintiff and his aides,” the Aga Khan shot back in his reply.

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