Government of Seychelles v Padayachy (MC 97 of 2023) [2024] SCSC 194 (28 October 2024)

IN THE SUPREME COURT OF SEYCHELLES Reportable MC97/2023 APPLICANT GOVERNMENT OF SEYCHELLES (rep. by S. Denis) and DYLAN PADAYACHY - RESPONDENT (rep by Alexia Amesbury) Neutral Citation: Government ofSeychelles 2024). Vidot J Application under section 4 of the Proceeds of Crimes (Civil Confiscation) Act to prevent disposal and dealing with specified property. v Dylan Payadachy (MC97/2023) Before: Summary: (28 October Heard: Delivered: 28 October 2024 Application denied. The Applicant does not have capacity to prosecute POCCCA, the application should have been instituted in the name of the FCIU such case. Under ORDER RULING VIDOT J [1] This is an application made in terms with section 4 of the Proceeds of Crime (Civil Confiscation) Act 2008 ("POCCCA"). This is to prohibit the Respondent or ~ny other person specified in the Order from disposing of or otherwise deal with property that was seized from the Respondent. In an affidavit attached to the Notice of Motion sworn by Sub- Inspector Cinderella Jacques of the Financial Crime Investigation Unit ("FCIU"), she identifies the property in issue to be SR 180,000.00 property") at his residence at L'Union Estate, La Digue on lS'" ("hereafter "specified allegedly seized from the Respondent February 2023. [2] The application equally prays for an order that Cinderella Jacques or such other person as this Court shall dire-ct be appointed Receiver over all or part of the said specified property to which the order shall relate and in accordance with such order, with the Court's directions, manage, keep possession or dispose of, or otherwise deal with any "other property in respect_q! which h~ is appointed in accordance with the" court's direction pursuant to section 8 of the POCCCA [3] The Appl icant further prays for an order to provide notice of any such order to be given to the Respondent or any other person directed by the Court and such further orders as the Court shall deem fit. [4] The grounds on which such orders above referred are being sought are because; I. The Respondent is in· controlled SR 180,000.00 and the specified property constitutes directly or indirectly benefit from criminal conduct; or II. The Respondent is in possession or control of the said specified property and the same was acquired, in whole or in part, with or in connection that directly or indirectly constitute criminal conduct; and Ill. the money being referred to exceeds SR50,000.00 in total. [5] The Applicant cites that the beliefs that qualify the averments made in its application are to be found in Cinderella Jacques' affidavit. These include the following; I. the police has credible _ . arrested for and charged with drug related offences; information that the Respondent has previously been II. that one of the multiples knifes found at and seized from the Respondent's home was tested positive for traces of a controlled drug; 111. traces of drugs was discovered of 4 monetary notes and that the notes seized were denominations typically and commonly used in cases of drug trafficking; IV. the Respondent had several versions to explain the source of the money seized and these could not satisfy Cinderella Jacques that the source of such funds was legitimate; v. VI. the Respondent lied in respect to exchange offoreign currencies; the Respondent used his mother to deposit cash into his account and doing it conveniently under the threshold; VII. the Respondent did not deposit the money into his bank account and therefore if the origin of the money was 'legitimate, he would have used his account; and VIII. the concealing and disguising proceeds of crime constitutes an offence of money laundering. [6] The Respondent filed an affidavit in answer objecting the application. The affidavit shall be addressed when I discuss the application below. [7] The Applicant had filed a Notice of Motion in 2023 in terms of section 3 of the POCCCA ,.. " in case Ex-P 74 of 2023. On 27th November 2023, Burhan J granted the application and made the following Orders; I. an interim Order pursuant to section 3 of POCCCA prohibiting the Respondent or any other person specified in that order from disposing of or otherwise dealing in whole and any part of the money; 11. appointed Cinderella Jacques Receiver over all or part of the money and allow her to take possession of any property to which such order relates and in accordance with the Court's direction manage, keep possession of or dispose of, or otherwise deal with any other property in respect of which she was appointed in accordance with the court's direction, pursuant to section 8 of POCCA 2008, as amended. [8] Section 3 of PO CCC A grants courts power to make an ex-parte order prohibiting the person specified in the order or any person having notice of the making of the order from disposing of, or otherwise deal with the ~hole or any part of the property or diminishing its value during the period of 30 days from the date of the making of the order. That is so long as certain set conditions are met. These are; That a person is in possession or control of; - " I. specified property and that the property constitutes directly or indirectly, benefit from criminal conduct; or II. specified property that was acquired, in whole or In part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct; and iii. the value of the property or the total value of the property referred to in subparagraphs (i) and (ii) of paragraph (a) is not less than R50,000. [9] The present appl ication is made in terms of section 4 of POCCCA. The grounds on which this application is rooted have been enumerated in paragraphs 1 and 2 above. [10] Section 4 of POCCCA reads as follows; (1) Where, on an inter partes application to Court, in that behalf by the applicant, it appears to the Court, on evidence, including evidence admissible by virtue of section 9 tendered by the applicant, that- (a) (i) a person is in possession or control 0/- specified property and that the property constitutes, directly or indirectly, benefitfrom criminal conduct; or (ii) specified property that was acquired, in whole or in part. with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct: and (b) the value of the property or the total value of the property referred to in subparagraphs 0) and (ii) of paragraph (a) is nor less than R50, 000, the Court shall make an interlocutory order prohibiting the person specified in the order or any other person having notice of the making of the orderfrom disposing ofor otherwise dealing with the whole or, any part of the property, or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person, that- (i) the particular property does nor constitute, directly or indirectly, benefit from criminal conduct and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from-criminal conduct; or (if) the total value of all the property to which the order would relate is less than R50,OOO: Provided that the Court shall not make the order tf it is satisfied that there would be a risk of injustice to any person (the onus of establishing which shall be on that person), and the Court shall not decline to make the order - . in whole or in part to the extent that there appears to be knowledge or negligence of the person seeking to establish injustice, as to whether the property was as described in subsection (1)(a) when becoming involved with the property. (2) An interlocutory order- (a) may contain such conditions and restrictions as the Court considers necessary or expedient; and (b) shall provide for notice of it to be given to the respondent and any other person as directed by the Court, who appears to be affected by it unless the Court is satisfied that it is not reasonably possible to ascertain the whereabouts of the respondent or that person. (3) Where an interlocutory order is in force, the Court, on application to it in that behalf at any time by the respondent or any other person claiming an interest in any of the property concerned, may- (a) ifit is shown to the satisfaction ofthe Court, that the property or any part of the property is property to which paragraph (a) of subsection (1) does not apply,' or (b) that the order causes any other injustice to any person (the onus of establishing which shall be on that persont.discharge or, as may be appropriate, vary the order, and the Court shall not make the order in whole or in part to the extent the Court shall not decline to make the order in whole or in part to the extent that there appears to be knowledge or negligence of the person seeking to establish injustice, as to whether the property was as described in subsection (1)(a) when becoming involved with the property. (4) The Court shall, on application to it in that behalf at any time by the applicant, discharge an interlocutory order. (5) Subject to subsections (3) and (4), an interlocutory order shall continue in force until- (a) the determination of an application for a disposal order in relation to the property concerned; (b) the expiration of the ordinary time for bringing an appeal from that determination,' or (c) if such an appeal is brought, when the appeal is determined or abandoned, whichever is the latest, and shall then lapse. (6) Notice of an application 'under this section shall be given- (a) in case the application is made under subsection (1) or (4), by the applicant to the respondent, unless the Court is satisfied that it is not reasonably possible to ascertain his whereabouts; (b) in case the application is made under subsection (3), by the respondent or other person making the application to the applicant,' and (c) in the case of an application made under either subsection (I) or (4), to any other person in relation to whom the Court directs that notice of the application be given, (7) An application made under subsection (1) shall- - (a) specify the name, address and national identity number (if known) (d' the respondent,' (b) set out the particulars of the property in respect of which the interlocutory order is sought,' (c) (d) specify the grounds on which the interlocutory order is sought; and be supported by an affidavit verifying the matters set out in the application. (8) Oral evidence may be adduced during an application made under this section if the Court shall so require or permit, (9) Where a restraint order, aforfeiture order or a pecuniary penalty order under the Anti-Money Laundering Act, 2006, is made that relates to any property that is the subject of an interim order" or an interlocutory order, that is in force, the interim order or theinterlocutory order shall- (a) (b) if it relates only to Ihat property, stand discharged,' or ifit relates also to other property, stand varied by the exclusion from it of that property, [II] Though such Application can be considered on affidavits and documents attached to the Application and the Objection only, Court is granted the possibility of catting oral evidence, This is exactly what happened in the present case, This Court allowed the hearing of oral evidence at the request of Counsels for both sides. To that end the Applicant filed case MA33 of 2024 requesting that the Applicant be allowed to cross-examine the Respondent on his affidavit. Counsel for the Respondent equally demanded that she be allowed to question those deponents who filed affidavits in support of the Application. [12] In such application, the Applicant needs only established a prima facie case. It is the submission of Counsel for the Applicant that they have discharged that burden. That in effect should satisfy section 9 (1) of POCCCA. Once the Applicant has established reasonable grounds to SUppOI'!an application, the evidential burden shifts to the Respondent. The Respondent has to satisfy court on the balance of probabilities that the specified property is not the proceeds of crime or criminal conduct; vide FlU v Cyber Space Ltd. [2013J SLR 97 and FlU v Sentry Global Securities Ltd.& Ors. [2012J SLR 331. [13] Section 9(2) of the Act however makes it clear that; The applicant shall not make an application under section 3 or 4 or submit evidence of his belief described in this section, except after reasonable enquiries and investigations and on the basis ofcredible and reliable information that he has reasonable grounds for suspecting- (a) the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, benefitfrom criminal conduct; or (b) the respondent is in possession or control of specified property and that the property wa~' acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefitfrom criminal conduct, and that the value of the property or as the case may be the total value of the property referred to in subsection (l)(a) and (b) is not less than R50,OOO. [14] Before addressing the above statutory provision, the Court has to satisfy itself that this Application was filed within the prescribed time. An Order was delivered by Burhan J in case number XP74/2023 on 27th November 2023. This was in respect of a section 3 Application under the Act. That order was to prohibit the Respondent or any person specified in the Order from disposing or otherwise deal with in whole or in part of the specified property, which is the SR 180,000.00. By that Order Burhan J also appointed SI Cinderella Jacques as Receiver over the property. It is believed that the latter has until now been in possession of the money. The present Application was filed on 26th December 2023 which is well within the prescriptive period 000 days following the Order made by Burhan J. as per section 3 (5) of the POCCCA. [15] With respect, J disagree with Mrs. Amesbury's submission that the section 3 Order lapses after 30 days unless there is an Interlocutory Order pursuant to section 4 made. Section 5 (a) makes this clear. If the application is made before the lapse of 30 days and the court makes a decision of the application after the lapse of that 30 days, the Interim Order will continue to be in force until the determination of the Interlocutory application. [16] This Court cannot rely on averments that the Respondent has previously been implicated in a controlled drug criminal case as a ground to grant the Application, particularly since that case was withdraw against him. The Respondent was allegedly arrested in case CRl13 and CR115 of2021. If the Court was to do so, it would be ignoring Article 19(2)(a) of the Constitution which provides that a person charged with an offence is innocent unti I the person is proven or has pleaded guilty. For all intent and purposes since the charge against him was withdrawn, the Respondent is to be considered innocent. The granting of a conditional offer by the Attorney General does not necessarily mean that the Respondent was actually guilty of these charges. [17] Whi1stthis Court takes into consideration the fact that on four notes of SRI 00/- out of the SR180,000.00 (in different denominations) which is subject of this Application was tested positive for traces of cannabis, the Court bears in mind that such does not overwhelmingly establish on its own that the Respondent was actually dealing in drugs. The proposition by Counsel for the Prosecution that such was an indication that the Respondent was dealing in drugs cannot be an absolute conclusion. This is because this Court takes judicial notice that the use of cannabis is relatively pervasive amongst a considerable section of the Seychellois population. This Court can safely conclude that innocent people such as Counsels and the Judge would at one time or another have had in their respective possession bank notes tainted with drugs. I also take notice that in this illegal trade, notes of smaller denominations are also used. Therefore, I question myself why traces of drugs were not found on notes of a lower denominations. I disagree with the position of the Applicant that those dealing in drugs normally use notes of higher value. If the Court was to adopt such position, so does it go to reason that the notes of lower denominations forming part of the specified property could therefore be considered as notes not being proceeds of or obtained due criminal conduct? [18] This Court does not agree with Mrs. Amesbury that it is questionable whether Officer Jacques being a Court appointed receiver, having been so appointed pursuant to the Order of 27th November 2023 cannot be the investing officer for the purpose of section 4 of the Act. She questions whether the officer can now come to Court and make a section 4 application. There is nothing that precludes the receiver from making such application. In fact, I find that there is logic in such receiver making the appl ication so that if granted, that officer can continue to hold the specified property. [19] As I assess submissions made by Counsels, I remind myself that the evidential threshold of proof that has to be discharged by the Applicant. As has been said, the Applicant needs only show a prima facie case. In FlU v Senty Global Securities Limited & Ors (SCA 21 of 2011) the Court of Appeal referred to of McK v Hand H [20061 IESC 63 at 10-11 wherein Hardiman J expressed the view that, once the two statutory pre-conditions were met in relation to the belief statement, that it is held and expressed, and that there are reasonable grounds for it, then the belief constitutes evidence. He further states: "This evidence is not conclusive and may be counteracted by evidence called by for on behalf of the defendant. Accordingly, the effect of the expression of an admissible belief under the Section, ifit is not undermined in cross examination, is to create a prima facie case which may be answered by the defendant if he has a credible explanation as to how he law/idly came into possession or control of the property in question, and established this in evidence ". [20] The Applicant needs to satisfy Court on the balance of probabilities that there is evidence that the specified property constitutes directly or indirectly benefit from criminal conduct or was acquired in whole or in part with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct. The traces of cannabis on four one hundred rupees notes and one penknife does not necessarily meet that threshold since the Respondent has explained that he uses cannabis. That in a .way negates that assumption that the specified property constitutes in part directly or indirectly benefit of criminal conduct. Use of cannabis is very different from trafficking in cannabis as a controlled drug. Though use of cannabis is a criminal conduct but that would not generate such a considerable amount of cash as was discovered at the Respondent's house. If such was to be admitted it means that the specified property cannot be said to be proceeds received directly or indirectly from criminal conduct. [21] Nonetheless, the Court bears in mind what was held in In Financial Intelligence Unit v Mares COI'P (2011) SLR 404 that: "A careful reading of sections 4-and 9 of POcccA indicates that the procedure in to the extent that once the applicant the Act involves a reverse burden of proof provides the Court with prima facie evidence that is, reasonable grounds for his beliefin compliance with section 9(J) in terms ofhis application under section 4(1) of POCCCA, the evidential burden shifts to the respondent to show on a balance of probability that the property is not the proceeds of crime ... " In effect in submitting that he is a drug user and uses cannabis/hashish, the r- Respondent was in effect doingjust that; showing that the specified property was not proceeds of crime or criminal conduct. In admitting use of drugs, it can be said that the Respondent was admitting to criminal conduct. However, use of drugs will not produce such an amount of cash. There should be other source which he tried to explain as being salaries or payment for part time jobs. r shall here below, provide the assessment of this Court on this averment. [22] In Clive Lawry Allisop v R (FlU) 24/2010 (unreported) it was stated: "POCCCA being a 'standalone proceedings, ' it is clear that in order to make an application under sections 3, 4 or 5 of POCCCA there is no needfor the applicant to prove the commission of a predicate crime, (underline mine). This Court takes such into consideration. No crime in regards to traffic or possession of controlled drug need to be established, only the mere possibility that the specified property could have its origin in from criminal conduct. There is no need to prove the comm ission of an offence. [23] Section 9(2) provides that the applicant shall not make an application under sections 3 and 4 "or submit evidence of his belief described in this section, except after reasonable enquiries and investigations and on the basis of credible and reliable infonnation that he has reasonable grounds for suspecting - (a) the respondent is in possession or control ofspecified property and that the property constitutes, directly or indirectly, benefit from criminal conduct; or (b) the respondent is in possession or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct, and that the value of the property or as the case may be the total value of the property referred 10 in subsection (l)(a) and (b) is not less than R50,OOO, " [24] The question therefore is whether the Applicant made reasonable enquiries and investigation on the basis of credible and reliable information. The Applicant has sufficiently pleaded this in its Notice of Motion and the affidavit of Cinderella Jacques. However, the latter fell short she of sufficiently testifying to that. This shou Id not be too alarm ing to Court. Nonetheless, it is safe to assume that the search at the Respondent's house was not just a mere fancy. Such search would have been ignited by some information irrespective whether such information was credible or not. Furthermore, it is apparent that considerable investigation was carried with sufficient quenes being made as evidenced by documents attached to the Application which shows that competent authorities were contacted to see whether the source of the specified property could be identified. [25] r find that the Respondent did not have a sufficient explanation as to how he had the specified property. His response was not altogether consistent. When the Respondent was employed by Gerard Payet of Lone Wolf Charter, his salary was credited to his account with Absa Bank as per exhibit P8. Therefore, during that time he could not have made such savings. The last salary was SR8,000.00. It is admitted by Mr. Payet that during the period that the Respondent was employed by his business he could have made SR 180,000.00. Again, it is evident that his salary was being paid to his bank account. The Respondent was employed by Mr. Barney Denousse. The latter testified that the Respondent received SR700.00 per day. That sum was not banked. For the seven months that he was employed he made at least SRI47,000.00. However, Mr. Denousse testified that the Respondent apart from working for him, performed a lot of part-time work. That would obviously have earned him additional money. That could explain the cash amount. However, what makes it suspect is the explanation given by the Respondent when the money was seized. Yet, the question to be asked is that if the money was obtained through criminal conduct, why would the Respondent have shown it to the Police Officers after they had completed the search in the absence of the Respondent without having found the same. That suggests that the Respondent felt that he had nothing to hide. Unless all the specifiedproperty was proceeds directly or indirectly from criminal conduct, the Respondent would not have shown the Police the cash. [26] I find that the witnesses called by the Applicant did not necessarily dispute that the Respondent had earnings which could in the least be considered to be part of the specified property. This is clear from the evidence of Barney Denousse. However, I am in no doubt that the Respondent had personal expenses. So, he would have used part of the salary received from Barney Denousse towards that end. However, it is unclear as to how much he received for other part time work. I find that at least part of the specified property was not proceeds of any criminal activity. However, the source of part of such specified cannot be adequately explained. [27] Furthermore, I am of the opinion that the FCIU themselves were not sure as to whether they could establ ish a case against the Respondent, thus the reason why despite seizing the money on 18th February 2023 they only filed a section POCCCA application to prohibit the disposal or dealings with the specified property on 15th November 2023 .. [28] Mrs. Amesbury further complained that the affidavit is defective. It is submitted that the affidavit does not satisfy section 170 of the Seychelles Code of Civil Procedure. The section provides 'Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory applications, on which statements as to his belief; with the grounds thereof,'may be admitted. " It cannot be overemphasized that an affidavit stands in lieu of testimony of the Applicant; vide Re Hinchliff, A person of Unsound Mind, Deceased, (1895J 1 Ch 117. Mrs. Amesbury further referred to Union Estate Management (Proprietary) Limited v Hebert Mittermeyer [1979] SLR 140 wherein it was stated that '..... an affidavit which is based on information 'must disclose the source of information and the ground of belief It is therefore necessary for the validity o] an affidavit that the affidavit should distinguish what part of the statement is based on information and belief and the source of that. in/ormation and grounds of belief should be disclosed. " [29] T have considered the affidavit of SI Jacques. The latter did not form part of the search team. Therefore, much of what happened during the search was reported to her. At paragraph 3 of her affidavit, she states that she swears the "affidavitfrom facts within my own knowledge save where otherwise appears and where so appearing" she believes "the same to be true." The averments that are based on her own knowledge and belief are correctly so identified. However, the affidavit fails where information as to the search was reported to her. She did not make the necessary distinction. However, since she was clear as to what is belief and knowledge, though the affidavit does not fully comply with law, I am inclined to accept the affidavit as investigating officer of the case, such information would have been brought to her knowledge. [30] I have already indicated that I find ample evidence that part of (in fact substantial part of) the specified property does not constitute proceeds from crime or criminal conduct. The Court should therefore be in a position to arrive at a sum it feels fall within the category of cash obtained legitimately. I have relied on the evidence of Barney Denousse to arrive at this conclusion. The Court will refrain from putting a figure to that part of cash it considers legitimate for reason laid down in the succeeding paragraph. [31] We now need to consider whether the Application is being prosecuted by the right Applicant. Applicant is defined under section 2 of the POCCCA as the FlU as establish under the Anti-Money Laundering Act 2006. It is abundantly clear from a reading of section 4 of the POCCCA that such application has to be instituted by the FlU (now FCTU) which is a statutory body. Section 10 of Anti-Money Laundering Countering & Financing in Terrorism Act provided that the FlU is establ ished as a body corporate with power to sue and be sued. Officer Cinderella Jacques is employed with the FCIU who now as Receiver has control over the specified property. The present case has been brought in the name of the Attorney General as Applicant. This is misconceived. The Application should have been brought in of the FCIU and not the Government of Seychelles. [32] Therefore, in view that the case is being prosecuted by an incompetent party as Applicant, this Application cannot be maintained. Therefore, this Application is denied and the FCIU is ordered to release the specified property to the Applicant immediately and without delay. Signed, dated and delivered at IIe du Port on 28 October 2024 16