Sunday, 17 November 2013
H.E MUMTAZ KASSAM the Uganda deputy ambassador was around to pick her award fro Distinguished services to Diplomacy .To present the award is Christian Udechukwu, Managing Director, BusinessinAfrica.
DIPLOMAT’S PLIGHT ENDS IN VICTORY AFTER PROTRACTED LITIGATION
A domestic worker, Daphine Wokuri, a Ugandan national, of the Uganda High Commission who was assigned to the then Deputy High Commissioner Ambassador Dr Mumtaz Kassam in 2006, commenced proceedings in the Chancery Division of the High Court against her personally, for alleged unpaid wages for the past 13 years.
These proceedings were completely baseless and without foundation, not least of all because the domestic worker was employed by the Uganda High Commission.
Ambassador Mumtaz Kassam opposed the proceedings on the grounds that the Courts of England and Wales have no jurisdiction to hear the claim on the grounds of Diplomatic and State Immunity.
This did not deter the employee from challenging the application. To circumvent this, the employee alleged that she had a personal contract with Ambassador Mumtaz Kassam and that the contract with the Uganda High Commission was a forgery. This led to protracted satellite litigation between the parties culminating in the trial judge, Judge Peter Smith declaring at the outset that the claim was against the wrong party and in case the old 1998 Contract between the parties was still valid, the courts in England and Wales would not have jurisdiction. And in any event, any alternative claim that the employee sought to bring against the Uganda High Commission, would fail on the grounds of State Immunity. Therefore, rather than proceed any further in the Trial, Daphine Wokuri was given the opportunity to withdraw her contradictory claim which she did unreservedly, apologising to Mumtaz Kassam and admitting and confirming that all her allegations against Mumtaz Kassam were unfounded.
The key factors concerned in this very complex case were:
1. whether DAPHINE WOKURI was employed in a private capacity with Ambassador Kassam and therefore her work constituted a private transaction in which case Mumtaz Kassam could not rely upon diplomatic immunity; and/or
2. whether Mumtaz Kassam was entitled to residual diplomatic immunity as the duties of the domestic worker largely amounted to official work.
3. Whether Ambassador Kassam was the correct defendant
4. DAPHINE WOKURI’s ability to pay the adverse costs of the litigation.
Since the proceedings commenced, two and a half years ago, it appears that the primary reason as to why the parties fell out, is that the employee’s concern was that her employment with the Uganda High Commission would terminate and she would have to return to Uganda. With this predicament facing her, she became difficult and cantankerous with Mumtaz Kassam and refused to continue her duties. During this period, she made various demands including that Mumtaz Kassam write a letter for her, addressed to the UKBA stating that she was continuously employed by Mumtaz Kassam in order to get indefinite leave.
Mumtaz Kassam could not write such as letter as she was now employed by the Uganda High Commission. This was the spark which gave this rise to the vicious proceedings which ensued for over 2 years!
Supported by four different limited liability law firms, all claiming to act for DAPHINE WOKURI under a no win no fee basis (conditional fee Agreement), DAPHINE WOKURI proceeded to make wild and false allegations against Mumtaz Kassam in an attempt to circumvent the immunity provisions under the Diplomatic Immunity and Privileges Act 1964; the State Immunity Act and the Vienna Convention which offer diplomats protection from certain civil prosecutions. One particular lawyer who claimed to have dropped out of the case due to a conflict of interest continued to attend court hearings and advising the barrister, who himself was also on a conditional fee arrangement, no win no fee basis.
Over the course of the 2 and half year period, there were 7 court appearances. At every turn, DAPHINE WOKURI and her lawyers moved the goal post to such an extent that the claim had no resemblance to the arguments which Daphine Wokuri and her lawyers put forward to the courts for determination. She claimed that she was employed by Mumtaz Kassam as her private domestic worker, and did not do assist with functions relating to the Uganda High Commission work. She also changed the year in which she claims to have commenced employment with Mumtaz Kassam originally. She alleged that any contract she had with Uganda High Commission was a forgery, in spite of having received a generous gratuity payment and salary from the High Commission. She falsely claimed her monthly salary to the extent that if it were true, she would be earning far more than Mumtaz Kassam herself. She also stated that she was kept in captivity and was threatened with deportation. The truth was in fact the converse. She travelled to Uganda annually. She decided when she wanted to return to UK; she was free to come and go whenever she wanted or needed. She was treated in every sense of the word, like a family member.
In order to rebut DAPHINE WOKURI’s claims Mumtaz Kassam needed to establish that the 2006 contract with the Uganda High Commission was not a forgery, that DAPHINE WOKURI was not a private staff and that the majority of the work that she did for MUMTAZ KASSAM was associated with MUMTAZ KASSAM’s diplomatic functions. MUMTAZ KASSAM had 7 credible witnesses averring that not only was DAPHINE WOKURI employed by the Uganda High Commission but that she was fully aware of this and she undertook official tasks for it on a regular basis throughout her 5 years of continuous employment with it.
Another important aspect of this case was its timing. The proceedings were commenced weeks after Ambassador Dr Kassam was transferred to the Uganda Embassy in Rome. Thus a further issue arose as to whether MUMTAZ KASSAM was entitled to residual diplomatic immunity under Article 39(2) of Schedule 1 of the Diplomatic Privileges Act 1964.
MUMTAZ KASSAM could not take steps in the proceedings to bring the action to an end sooner as to do so would render her without diplomatic immunity protection as she would have been deemed to have submitted to UK jurisdiction.
Judge Paul Smith of the Chancery Division, during the course of the last hearing, on 13 November 2013, indicated that if the 1998 employment contract (entered in Uganda between the parties) was valid then the UK courts would not have any jurisdiction as the contract was made in Uganda between 2 Ugandan nationals both of whose domicile was also Uganda. In any case, any claim now would be time barred under the Limitation Act 1964. As regards the 2006 contract which Daphine Wokuri signed with the Uganda High Commission, Judge Paul Smith indicated that there was overwhelming evidence that it was not a forgery and that her claim against Mumtaz Kassam was misplaced.
The Judge concluded uncategorically that DAPHINE WOKURI’s claim as pleaded was not going to succeed. DAPHINE WOKURI was then advised about the futility of her claim and she withdrew her claim on the following basis:
“The claimant unreservedly apologises and withdraws all allegations made against the Defendant which she conceded were unfounded”
After the hearing, Mumtaz Kassam commented, “I am so relieved that the ordeal is over for me. For two and a half years I had to endure malicious allegations and constant court appearances which were designed to increase the costs. Such lawyers (the ones acting for Daphine Wokori) should be prohibited from acting on a no win-no fee basis in such cases involving diplomats.”
Mumtaz Kassam was represented by Mr. Atul Amin and Mrs. Salma Amin of Hugh Cartwright and Amin Solicitors, who were supported by two leading Counsels, Prof Dan Sarooshi and Mr. Phillip Aliker.
AMBASSADOR DR. MUMTAZ KASSAM