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Claim No. CFI 015/2019

THE DUBAI INTERNATIONAL FINANCIAL CENTRE

IN THE COURT OF FIRST INSTANCE

BETWEEN

MUSAAB TAG ELSIR ABDELSALAM

Claimant/Appellant

and

EXPRESSO TELECOM GROUP LTD

Defendant/Respondent

ORDER WITH REASONS OF CHIEF JUSTICE ZAKI AZMI

UPON the Part 7 Claim Form dated 20 March 2019 (the “Claim”)

AND UPON the Judgment of Justice Sir Jeremy Cooke dated 12 May 2023 dismissing the Claim (the “Judgment”)

AND UPON the Claimant’s Appeal Notice dated 2 June 2023 against the Judgment (the “Claimant’s First Permission Application”)

AND UPON the Order of Justice Sir Jeremy Cooke dated 25 July 2023 refusing the Claimant’s First Permission Application

AND UPON the Claimant’s renewed Appeal Notice dated 16 August 2023 seeking permission to appeal the Judgment (the “Claimant’s Second Permission Application” or “Permission Application”)

AND UPON reviewing all relevant material added onto the Court file for these proceedings and those added onto the Court file of CA-011-2021

AND UPON reviewing the Rules of the DIFC Courts (the “RDC”)

IT IS HEREBY ORDERED THAT:

1. The Claimant’s Second Permission Application is dismissed.

2. The Claimant shall pay the Defendant the costs of the Second Permission Application, to be subject of assessment by the Registrar if not agreed.

Issued By:
Delvin Sumo
Assistant Registrar
Date of issue: 11 October 2023
At: 12pm

SCHEDULE OF REASONS

1. This is the Claimant’s Second Permission Application to appeal against the decision of Sir Jeremy Cooke, the Judgment dated 15 May 2023. The Claimant’s First Permission Application was refused by the Judge. In doing so, the Judge had given his written grounds of reasoning.

2. Apart from the grounds of reasoning given by Sir Jeremy Cooke, I had also read through his Judgment on his refusal for permission to appeal as well as, to refresh my memory, the grounds of reasoning of the Court of Appeal referred below which reversed the decision of the Court of First Instance of the first hearing of the claim before H.E. Deputy Chief Justice Ali Al Madhani. The duty of the Court in considering a renewed application to appeal is essentially to review the Judgment of the Judge of CFI but it is not prevented to consider matters and reasoning given in his Judgement refusing the first application.

3. The Appellant, who is the Claimant, claimed from the Respondent a sum of damages allegedly pursuant to three agreements which had been entered into between him and the Respondent. It is important to note that there were three different Employment Agreements entered into by the parties. The first was from 1 November 2008 until 31 August 2010. The next one was from 1 August 2010 until 31 July 2012 and the third one was entered from 1 August 2012 until 31 July 2014. Although the last Agreement ended on 31 July 2014, the Claimant did not make any claim against his employer until much later. Time wise he filed his claim nine years after the end of his first Agreement, seven years after end of his second Agreement and almost five years after the third Agreement. In the meantime, the law relating to employment and the DIFC has been amended. There was the law of 2005 as amended in 2012 and there was another law in 2019. The details of these Agreements can be found in the Judgment of which have been cited in quite lengthy detail. Going back into history, the Claimant had filed his Claim before the CFI on 20 March 2019. He failed in his Claim before the CFI. Permission was granted to him to appeal to the Court of Appeal. The Court of Appeal decided on the interpretation of the employment laws that were challenged by the Claimant. The Court of Appeal ruled that the interpretation given by the learned Judge that the six months limitation applied to the Appellant was erroneous. Under the 2019 law, a claim under the employment law must be filed within six months of his termination although previous to this 2019 law, the limitation period was held to be six years. The Court of Appeal ruled that the 2019 amendment cannot apply retrospectively. The Court of Appeal sent the case back to the Court of 4 of 5 First Instance for a retrial as there were questions of facts and another laws that needed to be decided. The employer i.e., the Respondent before the Court of Appeal submitted that the Court of Appeal should decide that the Appellant could not succeed because his claims for most of the part will be time-barred even under the six-year limitation period set by the earlier legislation. But the Court held that since the submissions by the Respondent raised questions of law and fact which could not be resolved or reviewed at the Court of Appeal and must be decided by the Court of First Instance. The case was reverted to the Court of First Instance and this was heard by Sir Jeremy Cooke.

4. Before Sir Jeremy Cooke, the Appellant raised several issues which were all rejected by the Judge. At this stage of considering whether permission should be granted to the Appellant to appeal, not all those grounds raised by the Appellant need to be considered. What needs to be decided is whether the appeal, if permission is given, would have a real prospect of success. There are many authorities on what real prospect of success mean and I do not intend to delve into it here.

5. In his reasoning to refuse permission to appeal at the Court of First Instance, Sir Jeremy Cooke ruled that the grounds of appeal were filed out of time i.e. more than 21 days from the date of the Judgment appealed against and this was contrary to RDC 44.10, RDC 44.29 and RDC 44.30, and no evidence and or reason was given to justify the delay in filing, or that the time prescribed was impracticable. On that basis alone the Judge held that the appeal would have no real prospect of success. I am of the opinion that he is right. Apart from that reasoning, the other reasons were relating to limitation periods. I associate myself with the reasonings given by the learned Judge in his Judgment. These include his decision and reasoning that in respect of the first Employment Agreement, the Claim is definitely out of time i.e., beyond the six-year period provided by the legislation as interpreted by the Court of Appeal. The Appellant pleaded those grounds pursuant to the provisions of Article 18 (2) of 2005 Employment Law as amended by the 2012 law, but it was held he was also out of the six-year limitation period.

6. I also agree with the learned Judge that all three Employment Agreements, although referred to as registered in the DIFC, in fact had a registered office in onshore Dubai. All the relevant facts show that he was operating from onshore Dubai. The Appellant’s explanation for this was that his office in the DIFC could not be set up in the DIFC because there was no space to be rented. Facts as found by the Judge also showed 5 of 5 that he was not ordinarily resident nor worked in the DIFC but rather in Sudan. For this reason, the DIFC laws cannot apply to him.

7. There was also a contention that his Employment Agreement was in fact one continuous Employment Agreement beginning from the date in the first Agreement date until the termination date in the third Agreement. The Judge gave sufficient reasons to justify why he held that the three Agreements are three separate Agreements and not one joint Agreement. He was right in holding that they were not one continuous service.

8. For those reasons, it is very clear that the appeal does not have any prospect of success and the Appellant also did not give any compelling reasons as to why the permission should be granted.

Conclusion

9. The Claimant’s Second Permission Application is dismissed, with costs which will be determined by the Registrar unless parties agree.