IN THE COURT OF APPEAL OF SEYCHELLES
[Reportable]
[2025] (22 April 2025)
SCA21/2024 & SCA05/2025 CONSOLIDATED
(Arising from MC 97/ 2023)
Government of Seychelles Appellant
(rep. by the Attorney General, Vinsent Perera)
and
Dylan Padayachy Respondent
(rep. by Alexia Amesbury)
Neutral Citation: Government of Seychelles v Dylan Padayachy [2025] (SCA21/2024 & SCA05/2025 (CONSOLIDATED) (Arising from MC 97/ 2023)
Before: Twomey-Woods, Robinson, André JJA.
Summary: Section 4 of Proceeds of Crime (Civil Confiscation) Act 1996 and amendments - applicant to bring suit- burden of proof - mixed funds - stay of execution -contempt proceedings.
Heard: 9 April 2025
Delivered: 22 April 2025.
ORDER
The appeals are allowed.
JUDGMENT
DR. M. TWOMEY-WOODS JA
(Robinson and André JJA concurring)
Background
On 27 November 2023, the Appellant, the Government of Seychelles (hereinafter "the Government"), obtained an ex parte interim order freezing assets totalling SCR 180,000 in various denominations, belonging to the Respondent, Dylan Padayachy (hereinafter "Mr. Padayachy"). Concurrently, the court appointed Sub-Inspector Jacques as Receiver over the said assets, vesting in her the authority to manage and retain possession of the property in accordance with the court’s directives under Section 8 of the Proceeds of Crime (Civil Confiscation) Act 2008, as amended (hereinafter "POCA").
One month after the issuance of the interim order, the Government filed an inter partes interlocutory application against Mr. Padayachy. The Government sought the following orders:
(i) an order restraining him from disposing of or otherwise dealing with the specified property, in whole or in part; and
(ii) a further order confirming Sub-Inspector Jacques as Receiver over all said property, with authority to retain possession, dispose of, or otherwise manage it in accordance with the court’s directions under Section 8 of POCA.
Following a hearing in which both parties presented their respective cases, the court, in a ruling dated 28 October 2024, declined to grant the forfeiture order in respect of the specified property and instead ordered its immediate release.
The court’s decision rested on the trial judge’s finding that the case had been improperly initiated. Specifically, the judge held that the application had been erroneously brought "in the name of the Attorney General as Applicant", rendering it "misconceived." The judge ruled that the Financial Crime Investigation Unit (FCIU)—rather than the Government of Seychelles—ought to have filed the application.
On 11 November 2024, the Government filed an appeal against the court’s decision (SCA 21/2024). The following day (12 November 2024), it lodged two additional applications in the lower court:
(MA 275/2024): Seeking a stay of the order for the release of the specified property; and
(MA 274/2024): Requesting an urgent hearing of the matter.
The court mentioned these matters on 4 December 2024 and directed Mr. Padayachy to file his objections by 17 January 2025. However, these applications were never adjudicated, as subsequent developments rendered them moot. Nevertheless, the procedural history remains relevant for the purposes of this appeal.
While these applications were pending, contempt proceedings (MA 320/24) were initiated on 31 December 2024 against Assistant Superintendent Marcus Jean of the Seychelles Police Force, attached to the FCIU. Notably, the notice of contempt proceedings was not personally served on Assistant Superintendent Jean, who was hospitalised and undergoing surgery at the material time. The return of service indicates that on 9 January 2025, the proceedings were served on Police Constable Janice Jean-Baptiste, with no evidence establishing her affiliation with the FCIU. Additionally, the caption of the application (MA 230/24) did not reference the parties in the substantive case (MC 97/23) or indicate that it was a matter arising from the original application but instead listed the matter as "Dylan Padayachy v FCIU."
During an ex parte hearing of MA 230/2024 on the very same day of service, 9 January 2025, the learned trial judge issued the following ruling and order:
ORDER
Since the FCIU is absent, I declare that the FCIU is in contempt of court and that they have not complied with the ruling made on the 28th of October 2024.
The FCIU should comply with the order made on 28 October 2024, and I fine them Rs 10,000 for contempt, to be paid within one month of this order.
The Government has also appealed this decision, which has been consolidated with the Section 4 POCA appeal for determination in the present proceedings before this Court.
In its appeal, the Government advances three grounds of appeal against the learned trial judge’s decision to refuse the forfeiture and receivership orders and the subsequent order to release the frozen funds.
This consolidated appeal now falls for determination by this Court.
Grounds of appeal in SCA21/2024
The grounds of appeal read as follows:
The learned trial judge erred in finding that the Government of Seychelles was not the proper applicant. The learned trial judge overlooked the amendment to Section 2 of the Proceeds of Crime (Civil Confiscation) Amendment Act 2017 (Act 10 of 2017) in this regard. The trial judge conflated the Financial Intelligence Unit (FIU) with the Financial Crime Investigation Unit (FCIU), despite the distinct status and separate mandates of these two entities: the FIU is a body corporate established under the Anti-Money Laundering Act 2006 repealed and replaced by the Anti- Money Laundering and Countering the Financing of Terrorism Act 2022 while the FIU is part of the Seychelles Police.
The learned trial judge erred in finding that a substantial portion of the cash in question was not the proceeds of crime. This conclusion was reached despite the respondents failure to provide any evidence to rebut the statutory presumption that the funds were criminal proceeds, especially in light of the adequate evidence presented against him.
The learned trial judge further erred by failing to specify the sum of money deemed to have been legitimately earned and as a result ordered the return of the entire amount without adequately addressing the legitimacy of the funds.
Grounds of appeal in SCA05/2025
Additionally, the Government has raised nine grounds of appeal against the order and fine for contempt namely:
The learned judge erred in law in entertaining the petition No. MA 230/24 for a purported application for contempt arising out of Case No. MC 97/23 whereas the caption in the said MA 230/24 did not refer to the parties in the said substantive case MC 97/23.
The learned judge erred in law in entertaining the contempt petition No.MA 230/24 where it was filed against 'F.C.l.U.', who is not a natural or a legal person.
The learned Judge erred in law in making an ex-parte order in the contempt petition No MA 230/24 without ascertaining whether the notice was properly served, whereas summons were issued in the name of Marcus Jean, which were not served on the said Marcus Jean, as the said Marcus Jean was in the hospital at the material time.
The Learned Trial Judge erred in holding the Financial Crimes Investigation Unit (FCIU) in contempt of the order dated 28th October 2024 delivered in MC 97/23 and ordering to pay SCR10,000 as fine, in that, the FCIU or Marcus Jean were not parties in MC 97/23, as the applicant and the proper party in the said case MC 97/23 was the Government of Seychelles.
The Learned Trial Judge erred in declaring the FCIU to be in contempt of court on the basis that the FCIU were absent, without providing any officer of the Financial Crimes Investigation Unit (FCIU), or any relevant party the opportunity to show cause. In contrast, the service was directed to Officer Marcus Jean, who was on sick leave and thus unable to appear.
The Learned Trial Judge erred in law by holding FCIU in contempt whereas the Government of Seychelles had appealed the order dated 28th October 2024 delivered in MC 97/23 in the Court of Appeal in SCA 21 of 2024 (Government of Seychelles Vs. Dylan Dominic Padayachy), which appeal is set down for hearing in April 2025.
The learned Trial Judge erred in law by holding FClU in contempt entertaining the purported Petition filed on 31/12/24 at the very first mention of the matter, whereas the stay petition filed by the Government of Seychelles as MA 275 of 2024 with an urgent motion MA 274 on 12 November 2024 for stay of the order dated 28th October 2024 delivered in MC 97/23 was first mentioned on 4th December 2024 and adjourned to 17th of January 2025 for the Respondent to file his objections.
The Learned Trial Judge erred in law by holding FCIU in contempt when there was no deliberate or wilful disobedience by the FCIU of the order of the court.
The Learned Judge erred in law and in fact in holding the 'Financial Crimes Investigation Unit' in contempt of the order dated 28th October 2024 in MC 97/23 Where the said order was being challenged in the Court of Appeal and where the Appellant had a good chance of success The Notice of appeal dated 11th November 2024 was attached to the Application for Stay filed before the same Court. The contempt order forced the Police Force to return SCR180,000 to the Respondent, which amount was the subject matter of the Appeal before the Court of Appeal as well as in the stay petition before the Supreme Court.
I proceed to deal first with appeal SCA 21/04 2024, that is, the appeal against the refusal of the learned trial judge to grant the section 4 orders of forfeiture and receivership.
SCA 21/04 2024: Ground 1- Improper Applicant Determination
The Honourable Attorney General has submitted in writing that the trial judge erred in ruling that the Government of Seychelles was not the proper applicant in the application for interlocutory orders. The trial judge failed to consider the amendment to Section 2 of the Proceeds of Crime (Civil Confiscation) Amendment Act 2017 (Act 10 of 2017) and incorrectly conflated the Financial Intelligence Unit (FIU) with the Financial Crime Investigation Unit (FCIU). These entities have distinct legal statuses and mandates: the FIU is a body corporate established under the Anti-Money Laundering Act 2006 (repealed and replaced by the Anti-Money Laundering and Countering the Financing of Terrorism Act 2022), while the FCIU is a unit within the Seychelles Police Force and not a statutory entity.
The Attorney General acknowledges that, prior to the amendment, such applications were brought in the name of the FIU. He submits that the trial judge’s oversight led to the erroneous conclusion that the case should have been brought in the name of the FCIU. This misapplication of the law resulted in the unjust finding of lack of standing by the Government to bring the application.
The Attorney General also submits that, notably, the issue of whether the Government was the proper applicant was neither raised by Mr. Padayachy or the judge during the hearing nor contested in submissions. Had it been raised, the Government would have referenced the amendment. Moreover, the pleadings consistently referred to the Act "as amended," reflecting its updated provisions.
Mrs Amesbury has conceded to all these submissions and accepts that the judge’s finding was indeed misconceived.
This Court’s deliberation on the issue of the improper applicant determination
I note that section 2 of the POCA 2008 Act before amendment defined “the applicant” for initiating section 3 interim actions and section 4 interlocutory actions as: " the FIU as established by the Anti-Money Laundering Act, 2006.
When section 2 of the POCA was amended in 2017, it provided in relevant part that “the applicant” in such matters is: “the Government of Seychelles”.
The learned trial judge’s finding in this regard was, therefore, fundamentally flawed. The court failed to consider the amendment to the relevant legislation, which was a critical aspect of the matter.
However, it cannot be underscored that the issue required clarification; the parties should have been afforded an opportunity to address it. Article 19 of the Seychelles Constitution enshrined the right to a fair hearing. This includes the right to have a reasonable opportunity to respond.1
Similarly, the principles of natural justice, including the right to be heard (audi alteram partem), are well-established in Seychelles jurisprudence, as demonstrated in Houareau & Anor v Karunakaran & Ors2, Cable & Wireless Seychelles Limited v Ministry of Broadcasting & Telecommunication & Anor3, and Eastern European Engineering Limited v Tortrade Limited & Anor4.
Our local jurisprudence5 has cited the following passage from the English case of Osborn, Booth and Reilly v the Parole Board6 for what constitutes procedure fairness:
“The first [virtue] was described by Lord Hoffman [in the case Secretary of State for the Home Department v (AF)(No 3)[2009] UKHL 28 ; [2010]2 AC 269 para 72]as the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel. I would prefer to consider first the reason for that sense of injustice, namely that justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made provided they have something to say which is relevant to the decision to be taken.”
It is improper for a court to render findings in a manner that could be perceived as an ambush, particularly where the parties were not given notice of a specific point of law that was not raised during the hearing. The absence of an opportunity to respond deprives the parties of their right to a fair trial and undermines the integrity of the judicial process.
This ground of appeal therefore succeeds. It does not, however, fully determine the success of the whole appeal. I therefore consider the other grounds.
Grounds 2 and 3- Failure to apply the statutory presumption and erroneously finding that some of the confiscated money was obtained legitimately
The Government has submitted that the learned trial judge further erred in finding that a substantial portion of the cash in question was not the proceeds of crime. This conclusion was reached despite Mr. Padayachy’s failure to provide any evidence to rebut the statutory presumption that the funds were criminal proceeds, particularly in light of the compelling evidence presented by the Government.
The Government submits that Sub-Inspector Cinderella Jacques provided evidence to support the claim that the funds were illicit—Mr. Padayachy, who had a prior arrest and charges for a drug-related offence (later dropped after a settlement with the Attorney General), was suspected of ongoing drug trafficking. Physical evidence, including knives with drug traces and banknotes with drug residues, supported these suspicions. The cash, found in concealed denominations rather than deposited in a bank, raised red flags typical of drug trafficking. Mr. Padayachy provided inconsistent explanations for the funds' origin and unverified claims about foreign currency exchanges, with no supporting bank or Bureau de Change records. Additionally, he used his mother to deposit cash into his account, staying below reporting thresholds (SR 50,000), and failed to deposit the cash himself despite having a bank account. These actions, along with the concealment and disguise of funds, strongly indicated money laundering.
The Government submits that despite the above compelling evidence, Mr. Padayachy failed to provide sufficient evidence to rebut the presumption of criminal proceeds. Sub-Inspector Cinderella Jacques’ affidavit was supported by thorough documentation confirming that Mr. Padayachy had no legitimate business activity, had never paid taxes, and had no verifiable income since his last employment ended in 2020/2021.
Moreover, the Government further submitted that his explanations were inconsistent and unsubstantiated. He initially claimed the funds came from past employment and then suggested they were from foreign currency exchanges. However, no verifiable evidence supported these claims, and shopkeepers/foreign exchange agents involved in the alleged exchanges confirmed that only small amounts were exchanged, often for goods.
Under the circumstances, the Government further submits, the court improperly relied on the testimony of the applicant’s witness, Mr Barney Desnousse, to infer that Mr. Padayachy could have earned the funds legitimately. Mr. Desnousse testified that he had not employed the respondent since 2021 and had only paid him for 6–7 months, which was insufficient to establish the legitimacy of the funds found in 2023.
Further, the Government submits that in paragraph 26 of the judgment, the court acknowledged that some of the cash might have been used for expenses but failed to explore this further. The court also referenced Clive Lawry Allisop v R (FIU)7, which reaffirmed that in POCA proceedings, it is unnecessary to prove a predicate crime; the applicant need only demonstrate the possibility that the property originates from criminal conduct. However, the court failed to adequately apply this principle, instead relying on weak evidence to infer legitimacy.
In summary, the Government’s submissions are to the effect that the trial judge’s decision was flawed, namely for its improper reliance on the Government’s evidence to support Mr. Padayachy’s case, failure to critically assess Mr. Padayachy’s financial context and inconsistencies, inadequate distinction between legitimate and illicit portions of the seized funds, incorrect evaluation of the evidence or to apply the legal standards required under POCA.
Mrs. Amesbury has also conceded to these submissions.
This Court’s Deliberation
The law on civil forefeiture
I begin by revisiting the legal principles and established jurisprudence concerning the burden of proof under the Proceeds of Crime Act (POCA) legislation. This issue, despite its clarity in law, remains frequently misunderstood and misapplied. The confusion arises from the non-conviction-based forfeiture model adopted by Seychelles in 2008, which represents a distinct approach to asset recovery.
To provide clarity, and context, it is essential to outline the four primary models or typologies of non-conviction-based forfeiture:
Model 1: Classic Non-Conviction-Based Confiscation - This model applies when confiscation cannot be pursued following a final conviction. Such scenarios may arise when legal proceedings against an offender cannot be concluded due to the offender’s death, absconding, or being deemed unfit for prosecution due to factors such as immunity, age, or mental capacity.
Model 2: Extended Confiscation - Under this model, confiscation is not limited to assets directly linked to the crime for which the offender is prosecuted. Instead, the confiscation order is extended to include other assets owned by the defendant, even if they are not directly tied to the offence in question.
Model 3: In Rem Proceedings - This model involves actions against the assets themselves rather than the individual. It allows for the confiscation of property believed to have been acquired through unlawful conduct, irrespective of whether the person is prosecuted or even investigated.
Model 4: Unexplained Wealth Model - This model compares an individual’s declared income against their actual property holdings to identify any disparities. Crucially, it does not require establishing a direct or indirect link to a specific predicate offence, focusing instead on the unexplained accumulation of wealth.8
Seychelles has adopted Model 3 in its legislative framework, aligning itself with jurisdictions such as Ireland, the United Kingdom, and South Africa. Notably, Seychelles’ POCA legislation mirrors the Irish Proceeds of Crime Act 1996, which was enacted just six weeks after the tragic murder of investigative journalist Veronica Guerin. Guerin’s reporting had exposed the activities of drug lords and organised crime figures in Ireland, underscoring the urgency of robust asset recovery measures.
Model 3, as incorporated into the Seychelles POCA Act 2008, targets property suspected to be the proceeds of crime rather than focusing on the individual who may or may not be under investigation. It operates under civil procedural law rather than criminal law, ensuring a distinct legal framework. The legislation incorporates critical safeguards, including notice provisions, the right for respondents to contest confiscation orders by seeking their variation or annulment, the opportunity for third parties to assert ownership claims, and provisions for legal aid and compensation.9
Before the court can issue a section 4 interlocutory order, the applicant—currently the Government—must present evidence demonstrating that a person is in possession or control of property constituting the proceeds of crime, with a value of not less than SCR 50,000. Upon the submission of such evidence, the court is obligated to issue the order unless the respondent provides evidence to the contrary or the court is satisfied that there exists a serious risk of injustice.10
Once issued, the interlocutory order remains in force until:
(1) the determination of an application for a disposal order regarding the property in question, or
(2) the expiration of the ordinary time limit for filing an appeal against that determination.11
During the period in which the interlocutory order is in effect, the respondent or any other person claiming ownership of the property may apply to the court for its discharge. If the court is satisfied that the property, or a specified portion of it, is not the proceeds of crime, or that the order results in some other form of injustice, it may discharge or vary the order as deemed appropriate.12
POCA delineates the standards and burdens of proof required of both the applicant and the respondent in section 4 cases. The applicant need only provide what the Act terms “belief evidence” on affidavit to secure both a section 3 interim order and a section 4 interlocutory order. This belief evidence must be grounded in reasonable grounds, supported by credible and reliable information obtained through reasonable inquiries and investigations.13 The standard of proof aligns with that applicable to civil proceedings.14
Once the applicant has submitted their belief evidence by affidavit, the burden shifts to the respondent to demonstrate, on a balance of probabilities, that the belief is unfounded and that the property is legitimately owned by them.15
These provisions have been exhaustively explained in our jurisprudence,16 leaving little room for ambiguity or misinterpretation.
Applying the law to the facts of the present appeal
The exhibits appended to Sub Inspector Jacques’ affidavit founding the section 4 interlocutory order were to the effect that there was:
Credible Information that Mr. Padayachy had previously been arrested and charged with a drug-related offence and was suspected of ongoing involvement in drug trafficking. He later accepted a settlement with the Attorney General and the charges were dropped.
Physical Evidence: Multiple knives were found, one of which had traces of controlled drugs.
Drug Traces on Cash: Traces of drugs were found on the banknotes in question.
Denominations and Concealment: The cash denominations and the fact that it was concealed (rather than deposited in a bank) raised suspicions typical of drug trafficking.
Inconsistent Explanations: Mr. Padayachy provided contradictory accounts of the funds’ origin without offering a legitimate explanation.
Currency Exchange Inconsistencies: Mr. Padayachy’s claims about exchanging foreign currency were unverified, as no bank or Bureau de Change records supported his assertions.
Banking Practices: Mr. Padayachy used his mother to deposit cash into his account, conveniently staying below reporting thresholds (SR 50,000), further raising suspicions.
Failure to Deposit Cash: Despite having a bank account, Mr. Padayachy did not deposit the cash, which would have been expected if the funds were legitimate.
Money Laundering Indicators: The concealment and disguise of the funds pointed to money laundering.
The totality of these pieces of evidence is sufficient to found “reasonable belief” as required by POCA. The learned trial judge examined each piece of evidence but ultimately made inconsistent and equivocal findings:
“ [21]… In admitting the 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 (sic)…
[25] I find that the respondent did not have sufficient explanation as to how he had the specified property. His response was not altogether consistent… For the seven months he was employed he made at least SR14 7000 however Mr. Desnousse 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 even by the respondent when the money was seized. Yet, the question to be asked is that if the money was obtained from 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 specified property was proceeds directly or indirectly from criminal conduct, the respondent would not have shown the police the cash. (sic)
[26]… 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.” (sic)
The learned trial judge appeared to accept that a portion of the funds was illegitimately obtained, as he suggested the court could determine a legitimate sum:
“[30]… 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 falls within the category of cash obtained legitimately.”
However, he did not further analyse which portions of the confiscated money were legitimate or illegitimate, as he concluded that the Government improperly brought the application instead of the FCIU.
Nonetheless, his conclusion that some funds were legitimately obtained warrants examination. His reasoning rested entirely on Mr. Desnousse's evidence.
Mr. Desnousse stated that Mr. Padayachy was his nephew and had worked for him for six to seven months in 2021, earning SR 700 to 800 per day, though he did not always work weekends or full-time. This testimony was repeated in court.
Two years later, on 18 February 2023, the sum of SR 180,000 was seized. Mr. Padayachy claimed the money came from juice sales at the beach and payments from tourist clients, which he exchanged at a shop. However, the shop’s sales supervisor, Tessy Matombe, and assistant, Ms. Tahiry, testified that only 50 euros had been exchanged, undermining his claim.
Given these discrepancies, the judge’s conclusion that part of the seized money was legitimate lacks logical consistency. It also fails to align with the burden and standard of proof required of Mr. Padayachy. He did not credibly rebut Sub Inspector Jacques’s evidence on a balance of probabilities, and his testimony was inconsistent and implausible, particularly in light of other witnesses’ accounts.
In these circumstances, the learned trial judge’s decision was erroneous.
The Court’s decision in appeal SCA21/2024.
The appeal is granted, and the corresponding orders will be issued at the conclusion of this decision.
Grounds of appeal in SCA 05/2025- contempt proceedings, order and consequences
The Government’s grounds of appeal are to the effect that the judge trial judge committed multiple legal errors in handling the contempt petition (MA 230/24). These included improperly entertaining the petition, which targeted the FCIU—an entity not party to the substantive case (MC 97/23) and lacking legal personality—and issuing an ex parte contempt order without verifying valid service of summons, as Marcus Jean, the named recipient, was hospitalised and unable to receive notice. The judge further erred by holding the FCIU in contempt for non-compliance with the 28 October 2024 order from MC 97/23, despite neither the FCIU nor Marcus Jean being parties to that case, and without providing an opportunity for the FCIU or its officers to respond. Additionally, the contempt order was issued prematurely while the Government’s appeal (SCA 21/2024) and related stay application (MA 275/2024) were pending, undermining the appeal process and forcing the return of SCR 180,000, which was under dispute. The judge also failed to establish wilful disobedience, a necessary element for contempt, rendering the proceedings fundamentally flawed.
The proceedings relating to the application of contempt are concerning. I have outlined at the beginning of the appeal the timeline in this case, but I want to emphasise the contempt pleadings and proceedings timeline for context when considering the appeal against the order made by the learned trial judge in this respect.
An appeal of the decision to refuse the interlocutory order was lodged on 11 November 2024, and the next day, 12 November 2024, the Government submitted two additional applications in the lower court: one (MA 275/2024) seeking a stay of the order to release the specified property and another (MA 274/2024) requesting an urgent hearing of the matter. These motions were mentioned by the learned trial judge on 4 December 2024. The court directed Mr. Padayachy on that date to file his objections by 17 January 2025.
While the application for a stay was pending, contempt proceedings (MA 320/24) were initiated against Marcus Jean, an Assistant Superintendent of the Seychelles Police Force attached to the Financial Crime Investigation Unit (FCIU). The date of the application was. 31/ December 2024. These were clearly matters arising (MA) from MC 97/ 2023 but bore a different caption and were, therefore, not served on the party who was allegedly in contempt.
The Government’s grounds of appeal can be consolidated and condensed as follows:
Incorrect Party Held in Contempt: The judge erred in holding the FCIU in contempt of the 28 October 2024 order from MC 97/23, as neither the FCIU nor Marcus Jean were parties to that case. The proper party was the Government of Seychelles, which had filed the application.
Denial of Opportunity to Show Cause: The judge erred by declaring the FCIU in contempt solely based on its absence, without providing any FCIU officer or relevant party an opportunity to respond. Service was directed to Marcus Jean, who was on sick leave and unable to appear.
Contempt Order During Pending Appeal: The judge erred in holding the FCIU in contempt while the Government’s appeal (SCA 21/2024) against the 28 October 2024 order was pending in the Court of Appeal, with a hearing scheduled for April 2025. 8. Contempt Order Undermining Pending Appeals: The judge erred in holding the FCIU in contempt while the 28 October 2024 order was under appeal, with the Government having a strong chance of success. The contempt order forced the return of SCR 180,000 to the respondent, which was the subject of both the appeal and the stay petition.
Premature Contempt Proceedings: The judge erred in entertaining the contempt petition (filed on 31 December 2024) at its first mention, while the Government’s stay application (MA 275/2024) and urgent motion (MA 274/2024), filed on 12 November 2024, were still pending and adjourned to 17 January 2025 for the respondent’s objections.
Absence of Wilful Disobedience: The judge erred in holding the FCIU in contempt without evidence of deliberate or wilful disobedience of the court’s order.
At the hearing, Mrs. Amesbury did not oppose any of the appeal grounds, effectively yielding to the Attorney General’s arguments.
This Court’s deliberation.
The Court, having carefully examined the proceedings and considered the grounds of appeal, finds the appeal well-founded. The contempt ruling is legally untenable when examined against the factual matrix of this matter. Nothing more needs to be stated.
For all these reasons, these appeals are upheld.
Order
Both appeals are upheld, and the following orders are made in consequence:
The sum of SCR 180,000 is to be immediately returned to the Government of Seychelles by Mr. Dylan Padayachy.
The fine of SCR 10,000 is to be immediately reversed and the money returned to the Government of Seychelles.
Signed, dated and delivered at Ile du Port, Mahé, Seychelles on 22 April 2025.
_____________________________
Dr. M. Twomey-Woods, JA.
I concur ________________
F. Robinson, JA
I concur ________________
S. André, JA
1 Article 19 (7) read with Article 5 of the Constitution of Seychelles.
2 (SCA 3 of 2017) [2017] SCCA 33 (19 September 2017)
3 (SCA 24 of 2018) [2020] SCCA 38 (18 December 2020).
4 (572) [2023] SCSC 572 (28 July 2023).
5 Vijay Construction (Pty) Ltd v Andre (MC 108/2014) [2016] SCSC 21 (25 January 2016).
6 2013 UKSC61, paras 67 and 68.
8 See Camden Asset Recovery Inter-Agency Network (CARIN) file:///Users/user/Downloads/Carin%20Manual.pdf
9 Sections 4,5,9,17, POCA 2008.
10 Sections 4 and 9 of POCA.
11 Section 4 (5) of POCA.
12 Section 4 (3) of POCA.
13 Section 9 (2) of POCA.
14 Section 9 (3) of POCA.
15 Proviso to section 4 (1) of POCA.
16 FIU v Mares (2011) SLR 405, Financial Intelligence Unit v Sentry Global Securities Ltd & Ors (2012) SLR 331
Financial Intelligence Unit v Cyber Space Ltd (2013) SLR 97.
10