Jail and fine for Dubai Lagoons' former CEO

Jail and fine for "A.M." the former CEO of Lagoons.  The Lagoon site languishes on the outskirts of Dubai surrounded by huge hordings that were once covered with colourful pictures of the proposed site and the lifestyle it offered.  Most of the large posters have now gone, removed by wind, sand and sun, while the tattered remains of others cling to the boards.
Source: Gulf News
Picture: Sama website
===============
The former CEO of Lagoons, a Sama Dubai project, faces three years in jail after the Dubai Appeals Court scrapped his acquittal of committing financial irregularities yesterday.
Presiding Judge Mustafa Al Shennawi on Tuesday convicted the 43-year-old Emirati former CEO, A.M., of abusing his duty as a public servant and accepting bribe. He will be jailed for three years and has been fined Dh2.89 million and ordered to repay the same amount (the bribe amount) to Lagoons.
The Appeals Court overturned A.M.'s primary judgment, who had been pronounced innocent by the Dubai Court of First Instance in July last year.
Al Shennawi also sentenced Lagoon's former executives, 42-year-old Emirati M.M., his 23-year-old compatriot N.Q. and 28-year-old M.S. (who doesn't carry documents), to three years in jail each. They were also slapped a joint fine of Dh4.8 million and ordered to repay the amount to Lagoons.
M.M., Lagoon's former sales manager, M.S., the ex-sales executive, and Damac's former property development director, 32-year-old Syrian, A.H., will each spend a year in jail after the court convicted them of exchanging bribe worth Dh650,000. The Appeals Court ordered slapped them a joint fine of Dh650,000. Al Shennawi acquitted A.H. of aiding and abetting M.A. and M.S. collect a bribe worth Dh2.3 million over a three-land deal.
Moreover, the appeals court confirmed the acquittal of M.A. and N.Q. of revealing the company's secrets by providing an investment house with details about their clients, as well as information and prices of properties owned by Sama Dubai.
Defence lawyers are expected to appeal yesterday's judgment before the Cassation Court within 30 days.
At an earlier hearing, a prosecutor submitted an official letter stating that the funds of Sama Dubai are public and informed the Dubai Appeals Court that five executives of the company charged with financial irregularities are in fact public servants.
"We received an official letter from the Financial Control Department [FCD] at the Rulers Court confirming that the funds of Sama Dubai and Lagoons are public and that their employees are public servants," said the Public Prosecution's representative when he handed FCD's letter to Al Shennawi.
The five executives had earlier pleaded not guilty and refuted their charges.
According to the charges sheet, prosecutors had charged M.A., N.Q. and M.S. with taking Dh4.8 million in bribe against unlawfully selling/reselling lands belonging to Sama Dubai.
Lagoons' former CEO was charged with breaching his duties by requesting from one of his company's clients, five apartments worth Dh2.7 million and a cash sum of Dh200,000 in bribe against failing to preserve the rights of Sama Dubai and causing it to incur a loss of Dh137 million.
Charge
The Public Prosecution charged A.M. with preventing Sama Dubai from gaining a Dh4.6 million in ownership transfer fees.
A.H. was accused of accepting Dh650,000 in bribes from M.A. and M.S. and aiding and abetting them. M.A. and M.S. were charged with aiding and abetting A.H. in committing the bribe crime.
An Egyptian financial controller, from Dubai Government's Financial Control Department, testified that A.M., when he was Lagoons' former chief executive, should have preserved the company's rights and increased its earnings. "He caused Sama Dubai to incur a purported loss of Dh137 million," claimed the Egyptian.
An Emirati senior executive from Sama Dubai testified that A.M. failed to take the proper action against the company which was late in paying the instalments of certain properties.

The Torture Tapes: Case dismissed

The case brought by Bassam Nabulsi against Sheikh Issa has been dismissed in the US District Court in Houston. The expert witness on the subject of service of process in the UAE appearing for the Defendant (Sheikh Issa) was Dr Faraj A. Ahnish of Hadef and Partners a UAE law firm. While making no reference to the matter by name, the summary of Dr Ahnish's evidence is below, reproduced courtesy of H&P.
The Houston Court's opinion and order are here. The dismissal is being appealed.
===============================
Dr. Faraj A. Ahnish, Managing Partner of Hadef & Partners' Abu Dhabi office, recently acted as expert witness in respect of a civil claim filed by an individual against a UAE citizen (the Defendant). The claim was brought before the United States District Court for the Southern District of Texas, Houston Division (the Court).
Pending before the Court was the Defendant’s motion praying that the claim be dismissed on, amongst other grounds ‘‘improper service’’ of notification of the Plaintiff’s Statement of Claim and excluding the expert witness statement and testimony prepared by a professor of law on the Plaintiff’s request.
The Court in its Memorandum Opinion and Order (in support of its judgment) allowed the Defendant’s motion for excluding the expert witness statement and testimony filed, by that expert, on behalf of the Plaintiff. The Court noted that:

“he has no experience with or expertise in U.A.E. law. Moreover, the Plaintiff acknowledges that [his] “testimony on U.A.E. law essentially echoed the testimony of Defendant’s legal expert (that is, the deposition testimony of Dr. Faraj A. Ahnish).” Accordingly, the Defendant’s motion to exclude the testimony of Professor Khan will be granted”.
The Court then went on to consider the Defendant’s motion to dismiss the claim for improper services. The Court cited the governing rule under US law on this subject. It acknowledged that the US relevant federal rule of Civil Procedure authorises the court to dismiss a case for “insufficient service of process”. It stated that due process under the United States Constitution requires that:

“before a court may exercise personal jurisdiction over a defendant, there must be more than notice to the defendant and a constitutionally sufficient relationship between the defendant and the forum. There also must be a basis for the defendant’s amenability to service of summons. Absent consent, this means there must be authorization for service of summons on the defendant.”

The Court then cited US federal rules on service of process on individuals located in a foreign country. Next, the Court considered the facts and circumstances relating to the purported service of process on the Defendant by a professional process serving company based in the US.

The facts relating to the purported service process were carefully analysed in Dr. Ahnish’s expert Witness Statement and the conclusion arrived at was that under the relevant provisions of UAE law, the service purported to have been effected on the Defendant would not be regarded as proper or sufficient service of a civil Statement of Claim. The conclusion arrived at in Dr. Ahnish’s Witness Statement was based on careful examination of the provisions of UAE law on service of court process.

The Court upheld the opinion of Dr. Ahnish’s opinion in its entirety in respect of service of process under UAE law. The Court stated:

“Citing the Expert Witness Statement of Dr. Faraj Abdullah Ahnish, the (Defendant) argues that the method used to serve him is not prescribed by the laws of the U.A.E. Ahnish has identified two reasons why the service officer’s service attempt was not sufficient under U.A.E. law: (1) The service officer was not authorized to serve process under U.A.E. law, and (2) [the service officer] did not provide documentation of service.
(1) Authorization to Serve Process in U.A.E.
Citing Article 5 of Federal Law No. 11, Ahnish states that process may be served in the U.A.E. by either (1) a summons clerk who is appointed and trained by the relevant governmental authorities, or (2) a private process server who works for a company authorized by the government of the U.A.E. to serve process.
Ahnish states that: “having reviewed the process adopted by the service officer in the current case vis-à-vis the provisions of the Civil Procedures Law, it is my view that the service of process as described by the service officer is fundamentally defective to the extent that it “defeats the purpose of the process” on the following accounts:
a) It was effected by a private person who under the Civil Procedures Law does not qualify as a summoner or a notification clerk. The service officer is not an employee of a U.A.E. company or a branch of a foreign company established in U.A.E. for the purpose of providing summons processing services;
b) The service officer does not obviously have any outsourcing contract or similar arrangement with the U.A.E. Ministry of Justice for providing summons processing services. . . .”

The Court went on to observe:

“Without disputing that neither [the service officer] nor his company have been authorized to serve process in the U.A.E., plaintiffs argue that common sense should override the requirements of U.A.E. law so long as [the service officer] used the “general methods of service available in the country of service.” As evidence that the Defendant was served in accordance with the “general methods of service available” in the U.A.E., plaintiffs cite Ahnish’s deposition testimony that the U.A.E. does not have any law that specifically prohibits service of suits from outside the country, and that service effected through an agent and service effected by leaving documents with a person at a place of business are allowed.”
The Court reached the conclusion that:

“the only credible evidence as to whether [the service provider’s] service attempt was made in a manner prescribed by U.A.E. law is the expert testimony of Ahnish.”
The Court further observed:

“Citing Article 7 of the Civil Procedures Law of the U.A.E., Ahnish contends that the service provider failed to provide a “notification document” required under U.A.E. law for service of process. According to Ahnish the required elements of a “notification document” include (1) the date and time of notification; (2) information about the party requesting service; (3) information about the party being served; (4) information about the “Notification Officer;” (5) the subject of the notification; and (6) the “full name of the person to whom notice is delivered and his signature, seal, or thumb print on the original [notification document] to acknowledge receipt or indicate refusal and the reason for such refusal.”

The Court then ruled that the above conclusions provide a sufficient basis for dismissing the claim for lack of jurisdiction without having to consider other motions for dismissal as brought by the Defendant.