Ex parte Encinas (MA 98 of 2024 (Arising in CS 44 of 2024)) [2024] SCSC 156 (31 July 2024)

IN THE SUPREME COURT OF SEYCHELLES Ex-Parte MATTHEW RAYMOND ENCINAS (rep. by Audrick Govinden) And In the matter of MATTHEW RA YMOND_ENCINAS (rep. by Audrick Govinden ) Reportable MA 98/2024 (Arising in CS44/2024) Petitioner Petitioner FORTUNE ICON LIMITED 1sf Respondent MEK GLOBAL LIMITED 2nd Respondent PEKEN GLOBAL LIMITED 3,·d Respondent Neutral Citation: Ex-parte Matthew Raymond Encinas (MA 98/2024) (Arising in CS 44 of \ Before: Summary: Heard: Delivered: 2024 (delivered on 3 pI July 2023). Vidot J Application for provisional seizure in terms with sections 280 and 281 of the Seychelles Code of Civil Procedure 24 May 2024 31 st July 2024 The Registrar of the Supreme Court is ordered to issue a warrant of seizure to an usher to be served on the Respondents with the following directives ORDER (a) Order the Registrar of the Supreme Court to issue a warrant of seizure to an usher to be served on the Respondents and provisionally seize the 2,700,000 USDT ("the USDT amount") currently found on the following accounts, fallenpanda 1522@gmail.com and mrencinas@gmail.com ("the Accounts") on the KuCoin exchange website platform, https:llwww.kucoin.com of the Respondents. (b) Order that in the event that any of the aforesaid Accounts have been deleted then; (i) To provisionally seize the USDT amount (or part thereof) that has been moved elsewhere on the KuCoin exchange; and (ii) Tfthe USOT amount (or part thereof) is no longer on the KuCoin exchange, to provisionally seize the USOT amount (or part thereof) from Kucoin that has been moved out of the Kucoin exchange; and (c) Order that the Respondent keeps possession of the seized 2,700,000 USDT (or part thereof) pending further Order from this Court. RULING VIDOT J [1] This is an ex-parte application for provisional seizure made in terms of section 280 of the Seychelles Code of Civil Procedure ("SCCP"). The Petitioner is the Plaintiff in the principal case bearing number C. S 44 of 2024 wherein he names as Defendants, Fortune Icon Limited, Mek Global Ltd. and Peken Global Limited, all of which are International Business Companies incorporated in the Seychelles. They are captioned here as Respondents. The application is supported by an affidavit of which the Petitioner is the deponent and it was sworn before Kirsten Banks Notary Public of the state of North Carolina, United States. The affidavit has been apostilled by Department of the Secretary of State of the State of North Carolina on 12thApril 2024 and bears number 5649. [2] The Petitioner avers that he is an investor in cryptocurrencies that in or about September 2021 he opened with an email address mrencinas@gmail.com and subsequently opened another account with email address fallenpandalS22@gmail.com in or January respectively with KuCoin. It is averred that all three Respondents have all at some point trade as KuCoin or KuCoin Exchange and operated the KuCoin Exchange under the website https//www.kucoin.com. [3] From February to March 2023, the Petitioner faced unjustified and improper account restrictions that prevented him from accessing, withdrawing or sending any funds from the two aforementioned accounts with KuCoin. Hence, the Petitioner had made several attempts to resolve the matter and sought assistance from KuCoin Customer Support to restore the access of his account on the platform. The requests remain unanswered or he would receive a generic automated response or inadequate support from KuCoin. In October 2023, both his accounts have been completely locked with no access. [4] On or about 26 October 2023, the Petitioner's legal Counsel wrote a letter to KuCoin addressed to Met. Global Limited and Phoenixfin PTE LTD. request inter alia to; 1. Immediately restore full access to the accounts without any impediments whatsoever; It. Provide clear and transparent explanation for the reason behind the prolonged restriction; along with detailed timeline for resolution; 111. Ensure that security and reliability of his accounts on the kuCoin platform. [5] All efforts by the Respondent to access accounts have been futile. The Petitioner contends that KuCoin has acted wrongfully and negligently and he fears that there is real risk that KuCoin may attempt to transfer the assets from the Respondents. [6] At this stage the petition is being prosecuted ex-parte for obvious reason; to prevent the Respondents (Defendants in the principal case) from dissipating of the assets. [7] Section 280 of the SCCP provides; "At any time after a suit has been commenced, the plaintiffmay apply to the court to seize provisionally any movable property in the possession of the defendant in the suit or to attach provisionally any money or movable property due to or belonging to the defendant in the suit, which is in the hands' of any third person. The application shall be by petition supported by an affidavit of the facts and shall be signed by the plaintiffor his attorney, tf any, and shall state the title and number of the suit. " And section 281 of the SCCP reads; "If the court is satisfied that the plaintiff has a bona fide claim, the court shall direct a warrant to be issued to one of the ushers to seize provisionally such property, or shall make an order prohibiting the third person in whose hands such money or other movable property is from paying such money or delivering such property to any other person pending the further order of the court. The order shall be served on the third party by an usher of the court. The court, before any such warrant or order is issued, may require the applicant to find such security as the court may thinkfit. ., [8] From a reading of section 280, it is clear that the procedure (of provisional seizure) that property is not disposed of by a defendant pending the disposal of a principal case. This ensures that the plaintiff, if successful, is able to enjoy the fruits of the judgment given in his or her favour; see Sun Excavations (Pty) Ltd. v Associated Construction & Investment CO LLC (CC05/2017) SCSC 668 (18 December 2020). [9] Therefore, upon consideration of Section s 280 and 281 of the SCCP, the Court has to satisfy itself that a case has commenced (which in the present case is case CS44 of2024) and that the applicant has a bona fide claim. If those requirements are met, then the Court "shall direct a warrant to be issued" to an usher of the Court to provisionally seize the property. [10] The Petitioner's application is to initially hear this matter ex-parte and subsequently inter partes. This is indication that at this juncture the Petitioner is seeking an interim order pending the hearing of the application inter-partes. Nonetheless, I have considered the Petition (including the affidavit) of the Petitioner to satisfy myself that the application meets the requirements of section 280 of the SCCP. J am satisfied that it does. It is necessary at this stage to protect the Petitioner's investment and prevent the dissipation of the funds held in the above mentioned accounts. [7] Therefore, in terms with section 281 of the SCCP, 1hereby (d) Order the Registrar of the Supreme Court to issue a warrant of seizure to an usher to be served on the Respondents and provisionally seize the 2,700,000 USDT ("the USDT amount") currently found on the following accounts, fallenpandal522@gmail.com and mrencinas@gmail.com ("the Accounts") on the KuCoin exchange website platform, https://www.kucoin.com of the Respondents. (e) Order that in the event that any of the aforesaid Accounts have been deleted then; (iii) To provisionally seize the USDT amount (or part thereof) that has been moved elsewhere on the KuCoin exchange; and (iv) lfthe USDT amount (or part thereof) is no longer on the KuCoin exchange, to provisionally seize the USDT amount (or part thereof) from Kucoin that has been moved out of the Kucoin exchange; and (f) Order that the Respondent keeps possession of the seized 2,700,000 USDT (or part thereof) pendingfurther Ord,er from this Court. Signed, dated and delivered at lie du Port on 31Sl July 2024 5