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Gratuity and the Sharia law

COULD you please enlighten me — and other readers — on the disbursement of gratuity and insurance claim of a deceased staff to his/her next of kin by his/her employer, by a government department in Abu Dhabi.

I know that the UAE labour law does not stipulate that the payment has to be routed through Sharia court, but this has been the practice followed by our department.

This practice has been causing mental trauma in addition to financial loss to the widow/next of kin of the deceased staff. In most cases, the mourning widow is compelled to travel to the UAE at her own cost to get the payment from the Sharia court.

—Mrs. R. S., Abu Dhabi ANSWER:

THE end-of-service payment (gratuity) payable to the heirs of a deceased staff member employed by a government department together with any other dues payable to them under an insurance policy or scheme does not necessarily entail the filing of any claim.

The heirs or any party having interest should obtain a Decree of Succession from the competent court whereby the legal heirs are determined, and their guardian if minors.

The heirs should present these documents proving their respective capacities and to authorise one from among themselves or a third party under an official power of attorney authenticated by the UAE embassy and ministry of foreign affairs empowering him to receive all these dues on their behalf without the need to file any claim or all the heirs to appear.

Visa for mother

I AM working in Sharjah and my salary as per the contract is Dh4,000. My wife and a child are staying with me, and would like to know if I can apply for my mother's residence visa as she is alone in India since my father has died.

—Sh. K., Sharjah ANSWER:

AS PER the entry and residency rules and regulations a person has the right to sponsor his family members, namely the spouse and his children till a known age or stage, after satisfying the relevant requirements including the minimum pay, etc. Such right does not extend to include the parent.

An application is in most cases filed and processed on humanitarian basis and in view of the exceptional and emergency cases, the concerned department, Naturalisation and Residency Department, has the right to accept or dismiss the application without giving reasons. It is treated on humanitarian basis.

Loan law

—Bh. R., Dubai

I HAVE granted a personal loan of Dh10,000 to my friend a year ago and he had promised me to pay back within three months.

It is almost one year now and he is still promising. I had not taken any signatures from him. Is there any way I can drag him to the court and putting him under the oath?

—Sh. K., Sharjah ANSWER:

A CREDITOR is required under the law to prove his debt. And whereas you are not carrying any instrument issued by the debtor, which is mandatory to substantiate your claim, then you can serve a notarial notice (through the Notary Public) requesting the debtor to settle the loan giving him a grace period, one week for example, warning him that his failure to respond would give rise to legal actions against him.

The notice is to be served on his address by a court bailiff. During the grace period he should approach you to negotiate settlement or pay the debt in installments where you can obtain any instrument in acknowledgment of the indebtedness.

If no response is received or if he serves a counter notice, you can resort to court requesting to substantiate the indebtedness through witnesses due to the impediment to obtain an acknowledgment from him. You have to produce the notice you had earlier served on him. The decisive oath should be administered to the debtor and in the light of the above the court is to decide on the claim.

Broken promise

I HAD given Dh10,000 to a person to start a business in Dubai. He agreed to give me back the full amount after a period of six months and also agreed to employ my son in his shop in return for my favour. It has been more than 10 months now.

He has started the business but so far he has not employed my son nor has he given back my money. There is a written agreement between me and the person signed in presence of two witnesses. He had given me a signed blank cheque also. I would like to know the following:

(a) Can I file a case to get back my money? And if so, where should it be initiated?

(b) Is it necessary that I should be present for the case, as I am working in Fujairah and it is impossible for me to take a leave?

(c) Can I get interest on the money?

(d) Is there any time frame to file the case?

—A. K., Dubai ANSWER:

YOU can fill in the cheque with the value of the loan evidenced in the agreement and put a current date after six months. The handing over of a blank cheque by the debtor is an authorisation from him to fill it within the limits of the agreement concluded between you.

If the cheque bounces unpaid due to insufficiency of funds in the account you can file a complaint with the Police Station at the area of jurisdiction of which the cheque was handed over to you.

You can also adopt the civil course of action by filing a civil claim based on the agreement and the cheque signed by the debtor. You can also claim interests accrued on the outstanding amount.

The civil action can be instituted before the Court at the area of jurisdiction of which the Defendant's domicile is located i.e. Dubai courts if he is residing in Dubai.

You can issue a Power of Attorney in favour of your son to take due actions on your behalf, provided that he must be 21 years of age or more. You can also retain a lawyer to represent you. The claim can be filed within 15 years before it is time-barred. —Compiled by Mustafa Barakat

LEGAL TERMINOLOGY

BY MUSTAFA BARAKAT

IF YOU are lost in the sea of legal jargon, we will here lend you a hand. Do you need to know the meaning of some equally puzzling legal term? Here you will find definitions legal terms, from the common to the bizarre, in simple English.

RAINMAKER:A lawyer who drums up a lot of business for a law firm by bringing in clients.

Men of straw:(1) Also known as 'straw-shoes' and refers to hireling witnesses who used to roam around in the English courthouses hoping to find a client who pays them for providing a testimony or taking an oath.

They are so called as they used to tie a straw round their shoes as a sign to attract customers. If a lawyer approaches them to fabricate a testimony, a very simple dialogue takes place: "Don't you remember?" asks the lawyer and the man of straw replies: "To be sure I do." The lawyer adds: "Then come into court and swear it." The witness takes the oath and testifies then get paid. Therefore, this phrase is used to indicate any one who shields another, particularly in a claim.

(2) It also refers to one with little means and, hence, not worth suing. To say in trade that a person is a 'man of straw' is to impute insolvency.

Witness: A person who testifies under oath at a deposition or trial, providing firsthand or expert evidence. In addition, the term also refers to someone who watches another person sign a document and then adds his name to confirm (called "attesting") that the signature is genuine.

Testify: To provide oral evidence under oath at a trial or at a deposition

Fishing expedition: Legal grasping at straws; the use of pre-trial investigation (discovery) or witness questioning in an unfocused attempt to uncover damaging evidence you can use against your adversary.

Deposition: An important tool used in pre-trial investigations where the prosecution body or one party questions the other party or a witness in the case. Often conducted in an attorney's office, a deposition requires that all questions be answered under oath and be recorded in the relevant minutes by a court reporter, who creates a deposition transcript. In some states depositions are, increasingly, being videotaped.

Any deponent, whose deposition is being taken, may be represented by an attorney. At trial, deposition testimony can be used to cast doubt on or impeach a witness's contradictory testimony or to refresh the memory of a suddenly forgetful witness.

If a deposed witness is unavailable when the trial takes place, for example, if he or she has died, the deposition may be read to the Court/jury in place of live testimony.

Impeach:(1) To discredit or challenge credibility. To impeach a witness's credibility, for example, is to show that the witness is not believable. A witness may be impeached by showing that he has made statements that are inconsistent with his present testimony, or that he has a reputation for not being a truthful person. (2) The process of charging a public official, such as the President or a federal judge, with a crime or misconduct and removing the official from office.

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