ACCS v Bois Sagailles Estates Ltd & Anor (CM 49 of 2024) [2024] SCSC 123 (2 July 2024)

CAROLUS J

Background & Pleadings

The Restraint Order

1. A Restraint Order was made by this Court on 31^st March 2023 in EXP01/2023 (“the Restraint Order”) against Mukesh Valabhji on the application of the Anti-Corruption Commission of Seychelles (“the ACCS”). The Restraint Order prohibits “MUKESH VALABHJI or any person from dealing with, which includes the disposal of, any realisable property belonging to MUKESH VALABHJI, whether or not the assets are described in this Order or are transferred to him after the Order is made, or are held on trust for him, and whether or not they are in his own name or are solely or jointly owned” subject to certain conditions and exceptions stated in the Order. The Order also provides that “[t]he particulars of identified property in respect of which the Restraint Order is made is set out in the Table and/or attached Annexures attached to this Order. For the avoidance of doubt, this Restraint Order is to apply to all realisable property belonging to MUKESH VALABHJI, whether or not such property is particularised in this Table and/or attached Annexures, and whether or not such property is held in his name or by third parties on his behalf”. Listed in the “TABLE OF PROPERTIES SUBJECT TO RESTRAINT ORDER DATED 31/03/23” attached to the Restraint Order, under the heading “Companies in Seychelles of which [Mukesh Valabhji] is believed to be the ultimate beneficial owner”, are the companies Bois Sagailles Estates Limited (“Bois Sagailles”) and Bois Cato Estate Limited (“Bois Cato”). The immovable properties listed as being owned by Bois Sagailles are Title Nos. J311, J312, S3726 T1901, T2019 and Transcription Vol. 81 No. 48 situated at Nid D’Aigle, La Digue (half undivided interest). The properties listed as being owned by Bois Cato are Title Nos. T1901 and, T2019. The Restraint Order further allows any person affected by it or Mukesh Valabhji himself to apply for the discharge or variation of the Order in accordance with section 27(6) of the Anti-Money Laundering Act 2006 (as amended by the Anti Money Laundering (Amendment) Act 2008).

Application for Discharge of Restraint Order

2. On 7^th February 2024, Bois Sagailles and Bois Cato made an application in CM14/2024 citing the ACCS as the respondent for inter alia, the discharge of the Restraint Order “against the Applicants and all their assets including parcels No S3726, J311, J312, T1901, T2019 and the property situated at Nid D’Aigle on La Digue transcribed in the old land register Repertory Vol. 45 No. 456”. The application is supported by two affidavits sworn by Robin Richmond on 7^th February 2024 (“1^st affidavit”) and 5^th April 2024 (“supplementary affidavit”) respectively and documents exhibited to both affidavits. The supplementary affidavit was filed in reply to the ACCS’ response to the application and Robin Richmond’s 1^st affidavit in support thereof.
3. In essence the application in CM14/2024 is made on the ground that both applicant companies and their properties are subject to the Restraint Order whereas the applicant companies are not owned by Mukesh Valabhji. It is averred in Robin Richmond’s affidavit of 7^th February 2024 that he is “the director, majority shareholder and sole beneficial owner of Bois Sagailles Limited and Bois Cato Limited”. As per the application and his affidavit evidence the original shareholders and directors of the companies were Robin Richmond and Noelin Didon, the latter holding nominal shares on trust for Robin Richmond. Noelin Didon resigned as director and shareholder of Bois Sagailles on 15^th January 2019 and of Bois Cato on 7^th January 2020. He was replaced in his directorship and shareholder roles in both companies by Anne Alcindor – sister-in-law of Laura Valabhji who is the spouse of Mukesh Valabhji. Currently Robin Richmond holds 11 shares and Anne Alcindor holds 1 share on trust for Robin Richmond in Bois Sagailles. Robin Richmond holds 90 shares and Anne Alcindor holds 10 shares on trust for Robin Richmond in Bois Cato (see paras 6 to 18 of affidavit of Robin Richmond dated 7^th February 2024). The Memorandum of Association of Bois Sagailles dated 28^th July 1994 (Exhibit RR1) and that of Bois Cato dated 9^th June 2010 (Exhibit RR2) confirm the shareholding of Robin Richemond and Noelin Didon as original subscribers of the memorandum of the companies. According to the Register of Directors and Secretaries and the Particulars of Directors and Secretaries (Exhibits RR3 & RR4) Noelin Didon resigned as a director of Bois Sagailles on 15^th January 2019 and of Bois Cato on 7^th January 2020 and ceased to be a shareholder of those companies as of the aforementioned dates, and was replaced by Anne Alcindor both as director and shareholder of the companies. In her affidavit dated 29^th August 2023 (Exhibit RR5) Anne Alcindor states that she holds nominal shares in Bois Sagailles and Bois Cato for Robin Richmond which is confirmed by her purported statement (Exhibit AA1) given to the ACCS during the course of the investigation against Mukesh Valabhji.
4. The ACCS objects to the application and has filed an affidavit sworn by Kevin Stephenson on 14^th March 2024, supported by a number of documents exhibited thereto inviting the Court to dismiss the application on the basis that the assets of the named companies were correctly included in the table of known assets of Mukesh Valabhji in the Restraint Order. The basis of his objections is that “there is compelling evidence that Mukesh Valabhji is the beneficial owner of both Bois Sagailles Estates Limited and Bois Cato Estates Limited” and that as such he believes that “they were correctly included as part of Mr Valabhji’s restrained assets when this Honourable Court made the Restraint Order in XP1/2023 on 31^st March 2023”. The “compelling evidence” referred to by Mr Stephenson includes the statement of W. M. Ravi Chathuranga Wickramsekara de Silva dated 16^th February 2022 (Exhibit KS1) which was exhibited to Mr Roy Cadence’s (then Director of Financial Forensics with ACCS) affidavit in support of the application for the Restraint Order in XP01/2023.  In his statement Mr de Silva states that he joined Intelvision Ltd in 2013 as a Financial Accountant but that his “role soon became more relevant to Capital Management and Consulting Ltd”. He explained that from 2013 and even after 2015 when he moved to Capital Management and Consulting Ltd, his job had two aspects: firstly, he kept accounts for several companies of which Mukesh Valabhji was the beneficial owner and which included Capital Trading Ltd; secondly he prepared and submitted financial accounts for a number of companies and several dormant companies with the beneficial owner being Mukesh Valabhji, which companies he then proceeds to list. These companies include Bois Cato and Bois Sagailles which he states “are property owning companies with the beneficial owner being Mukesh Valabhji”.  He also states that “To the best of my knowledge these are Mukesh Valabhji Group Companies, managed by Capital Management and Consultancy and audited by NN Associates, Premier House Mahe”.
5. Also exhibited to Mr Stephenson’s affidavit are documents which he states were recovered as part of the ACCS’ investigation against Mukesh Valabhji and which support his belief that Mukesh Valabhji is the beneficial owner of Bois Sagailles and Bois Cato (Exhibit KS2). Some of these documents were retrieved from an electronic device seized at Mr Valabhji’s house at Morne Blanc while others were hard copy documents also recovered at Morne Blanc. Other emails and documents were retrieved from premises of businesses/companies associated with Mukesh Valabhji (i.e. Intelvision Ltd, Capital Trading Ltd).
6. Documents found at the home address of Mukesh Valabhji relating to the transfer of titles J311 and J312 to Bois Sagailles which Mr Stephenson avers illustrates will have been for the ultimate benefit of Mr Valabhji are also exhibited (as Exhibit KS/3). These documents relate to the transfer of titles J311 and J312 from Compagnie Seychelloise de Promotion Hoteliere Ltd (“COSPROH”) of which Mukesh Valabhji was the Executive Chairman, to Fisherman’s Cove Hotel Limited (“FCHL”), the subsequent sale of FCHL to Hotel Properties Ltd BVI (“HPLBVI”) of which Mr Valabhji was the ultimate beneficial owner, and the ultimate transfer of titles J311 and J312 by FCHL at a time where Mukesh Valabhji was its beneficial owner (i.e. December 2005) to Bois Sagailles which currently owns the two plots of land. Exhibit KS/4 relates to the sale of title S3726 to Bois Sagailles by Indian Ocean Hotels (Seychelles) Limited, a COSPROH company, even before charges on the property had been discharged. Mr Stephenson avers that the chronology casts doubt on the legitimacy of the transactions in favour of Bois Sagailles.
7. Mr Stephenson avers that neither Bois Sagailles nor Bois Cato has complied with its obligation under the Beneficial Ownership Act 2020 to declare their beneficial owner(s), and that this has been confirmed by the Financial Intelligence Unit (“FIU”). Exhibit KS/5 is a letter from the FIU dated 14^th March 2024 confirming that a search on the Seychelles Beneficial Ownership database in regards to the two companies had returned no results. He further avers that the companies have not responded to the ACCS’ letters asking them to confirm the details contained on their Register of Beneficial Owners which they are required to retain under sections 5, 9 and 14 of the Beneficial Ownership Act 2020. The letters are exhibited as Exhibit KS/6.
8. Finally, Mr Stephenson points out that Mr Valabhji has not sought to challenge the inclusion of the two companies as his assets since 31^st March 2023 by seeking to discharge or vary the Restraint Order in this regard.
9. He suggests that in the circumstances the Court should be slow to accept Mr Richmond’s evidence that he is the sole beneficial owner of the two companies, and if the matter proceeds to hearing that Mr Richmond is required to attend for cross-examination.
10. In his supplementary affidavit dated 5^th April 2024, Robin Richmond seeks to refute what he calls W. M. Ravi Chathuranga Wickramsekara de Silva’s unfounded and unsupported averments which purport to be statements of fact in relation to Bois Sagailles, Bois Cato and another company Classica Ltd (“Classica”). While he states that Classica is jointly owned by Mukesh Valabhji and himself with each holding 50% shares therein (Exhibit RR6), he categorically refutes Mr de Silva’s statement that Mukesh Valabhji is the beneficial owner of Bois Sagailles and Bois Cato and reiterates that he is the sole beneficial owner of these two companies and further that his ownership of the same is in accordance with the Companies Act 1972 and undisputable. He also sought to explain why Bois Sagailles and Bois Cato are listed in the balance sheet of another company Capital Trading (Proprietary) Limited (“CTPL”) which is beneficially owned by Mukesh Valabhji, as a related party owing CTPL a sum of SCR36,000 and SCR40,000 respectively. He explained that when Mr Noelin Didon who originally provided secretarial, management and accounting services for Bois Sagailles and Bois Cato fell ill, he retained the services of Capital Management and Consultancy Ltd (“CMCL”) which had been providing such services to Classica since its incorporation. He further stated that:

9. That I cannot comment on the accounts of CTPL as it is not my company but however I can confirm that [Bois Sagailles and Bois Cato] does have debts with CMCL for services rendered. Sum of Rs36,000 listed as related party receivables for [Bois Sagailles] is for audit fees for 2011 until 2019 and similarly the Rs40,000 listed in respect of [Bois Cato] is audit fees for 2010 until 2019. The audit for these years were carried out by NN Associates.

 

10. That I do not know why the debt of [Bois Sagailles and Bois Cato] with CMCL is reflected in the balance sheet with CPTL.

 

11. That from my knowledge received from being an owner of companies and a businessman, I can confirm that Classica is a related/affiliated party of [Bois Sagailles and Bois Cato] as Classica has a shareholder/beneficial owner and director in common with [Bois Sagailles and Bois Cato] since I am a shareholder, beneficial owner and director of all three companies namely Classica, [Bois Sagailles and Bois Cato].

 

12. That from several documents shown to me from the bundle of documents that has been provided by the Defendant, it appears that CMCL and CPTL is a related/affiliated party of Classica as it has a common director and shareholder/ beneficial owner with Classica which is Mukesh Valabhji.

 

13. That I believe that since Classica is a related/affiliated party with CMCL, CPTL as well as with [Bois Sagailles and Bois Cato] as I have explained above, that may be why it appears as a related party in the balance sheet of CPTL.

 

11. Mr Richmond goes on to maintain that he is the sole beneficial owner of Bois Sagailles and Bois Cato and that the nominal shares held by Anne Alcindor is beneficially his. He further avers that the Supreme Court is already in the possession of proof that he is the owner of the two companies in MA 29/2023 (arising from DC No.227/2019) - a petition for adjustment of matrimonial property filed against Mr Richmond by his ex-wife. He has exhibited as Exhibit RR7 the affidavit of his ex-wife made in support of the petition.
12. Mr Richmond further states that the Exhibits produced by the ACCS appear to be incomplete and conveniently pieced together without presenting the full documents sought to be relied upon.

Notice of Motion by ACCS to provide information on Beneficial Ownership

13. The ACCS have now filed the present Notice of Motion (CM49/2024 arising in CM14/2024) for –

14. An order to compel the directors of both Respondents [Bois Sagailles and Bois Cato] to confirm and provide the following information to this Honourable Court and the Applicant, pursuant to their obligations under the Beneficial Ownership Act 2020:

1. Confirm whether they have at all material times kept a register of beneficial owners;
2. Provide the information contained on any register of beneficial owners;
3. Confirm whether the details contained on any register have been filed with the Financial Intelligence Unit (‘FIU”), and the date of filing;
4. Confirm whether there have been any changes of Beneficial Ownership and, if so, whether the FIU were notified of such changes and the date of that notification;
5. Provide any register to the ACCS and Court to inspect.

 

14. The application is grounded on the affidavit of Kevin Stephenson sworn on 14^th March 2024, in which he avers that as an authorised officer of the ACCS he is authorised to swear the affidavit pursuant to section 9 of the Anti-Corruption Act 2016. The relevant paragraphs of the affidavit read as follows:

2. I verily believe and aver that neither Bois Sagailles Estate Limited nor Bois Cato Estates Limited has complied with their obligations under the Beneficial Ownership Act 2020 to identify and declare their beneficial owner(s).

 

3. The Respondents were invited by the ACCS pursuant to section 14 of the Beneficial Ownership Act 2020 through correspondence dated 29 February 2024 to confirm the details contained on their Register of Beneficial Owners. Specifically they were requested to:

 

1. Confirm whether they have at all material times kept a register of beneficial owners;
2. Provide the information contained on any register of beneficial owners;
3. Confirm whether the details contained on any register have been filed with the Financial Intelligence Unit (‘FIU”), and the date of filing;
4. Confirm whether there have been any changes of Beneficial Ownership and, if so, whether the FIU were notified of such changes and the date of that notification;
5. Provide any register to the ACCS and Court to inspect.

 

4. No response has been forthcoming from either Applicant.

 

5. I verily believe and aver that such information will assist the Court with the determination of the matter before it, namely identifying the beneficial ownership of the companies. As such I request that the Court makes an order for the provision of such information and material, in accordance with the terms of the filed Notice of Motion.

 

15. The respondent companies object to the Notice of Motion and have filed a plea in limine litis as well as an affidavit in reply sworn on 5^th April 2024 by Robin Richmond in respect of CM49/2024. The plea in limine litis reads as follows:

1. The 1^st and 2^nd Respondents herein raise the following objections on points of law stating that the Motion ought to be dismissed and struck out on the grounds that:

1. The applicant’s Motion is defective in that it purports to be a Notice of Motion emanating from a Notice of Motion for discharge of a Restraint Order;
2. The applicant’s Motion is defective in that any responses ought to be canvassed properly in an answering or reply affidavit; or
3. The applicant’s Motion is further defective noting that it purports to emanate from the Beneficial Ownership Act when the Applicant in CM14/2024 emanates from the Anti-Money Laundering Act.

 

16. In his affidavit of 5^th April 2024 Robin Richmond avers in relevant part:

2. That I verily believe and am advised by my Attorney that the Application prima facie has no foundation or substance and thus does not sustain in law.
3. That I verily believe and am advised by my Attorney that the Notice of Motion is bad in law, has been erroneously initiated and ought to be dismissed outright.
4. That I verily believe and am advised by my Attorney that the Notice of Motion and its Affidavit in support are defective, including the fact the Motion does not indicate under what specific section the Applicant is bringing the Motion.
5. Notwithstanding the above preliminary objection on law raised under 3 to 6 of this Affidavit, I hereby address each and every averment of the Applicants Affidavit.
6. That I aver that the motion is frivolous and vexatious noting the averments in my initial affidavit in support in CM14/2024 and my supplementary affidavit in the same case.
7. That I aver that the affidavit is unequivocal in terms of my averments which I have expressed stated and provided documentary evidence in support of my shareholding and ownership of the two Respondent companies herein.
8. That I aver that the Motion is thus unnecessary and purports to deal with procedural matters which is regulated by the FIU and it is unclear where the authority to bring this motion emanates from such legislation.
9. That I repeat my averments in my supplementary affidavit in CM14 OF 2024 dated 5^th April 2024.
10. That I pray this Honourable Court be pleased to dismiss this Application with costs in favour of the Respondent.

 

17. Counsels for both the ACCS and the respondent companies filed written submissions in support of their respective positions in CM49/2024, to which this Court has given careful consideration.

Analysis

18. The two companies Bois Sagailles and Bois Cato have made application in CM14/2024 for the discharge of the Restraint Order made in XP01/2023 insofar as it concerns these companies and immovable property registered in their names. It is clear from paragraph 25a. of the application in CM14/2024 which contains the reliefs sought by the two companies that the application is not for a complete discharge of the Restraint Order against all assets subject to the Restraint Order. The discharge, if granted, will only apply to the companies Bois Sagailles and Bois Cato and their assets regardless of whether the term “discharge” or the term “variation” or the term “amendment” is used by the ACCS in the present application to describe what is being applied for in CM14/2024 in relation to the Restraint Order.
19. The application in CM14/2024 is made on the ground that the Restraint Order was made against Mr Valabhji to restrain assets belonging to him and include assets held in trust for him or by third parties on his behalf or in which he has beneficial interest, whereas he has no beneficial interest in Bois Sagailles and Bois Cato or the assets that they own as it is Mr Robin Richmond who is the sole beneficial owner of the companies as well as a director and the majority shareholder thereof with the nominal shares in both companies being held by another director/shareholder on Mr Richmond’s behalf.  The ACCS have objected to this application maintaining that Mukesh Valabhji is the beneficial owner of both Bois Sagailles and Bois Cato which were correctly included as part of Mr Valabhji’s restrained assets under the Restraint Order.
20. The subject matter of this Ruling arises from CM49/2024 made by way of Notice of Motion supported by the affidavit of Kevin Stephenson dated 14^th March 2024, which in turn arises from CM14/2024. In terms of CM49/2024 the ACCS seeks an Order of this Court to compel Bois Sagailles and Bois Cato to provide certain information and confirm certain matters to the Court and the ACCS so as to enable the identification of the true and ultimate beneficial owner of Bois Sagailles and Bois Cato. Bois Sagailles and Bois Cato for their part contend that the motion CM49/2024 is procedurally and substantively defective and should be dismissed. They raise preliminary points of law reproduced at paragraph [15] above, and rely on Robin Richmond’s affidavits filed in both CM49/2024 and CM14/2024.
21. The first point of law deals with the form of the application in CM49/2024 which is made by way of Notice of Motion supported by affidavit. The respondent companies contend that the Notice of Motion is defective in that it purports to be a Notice of Motion emanating from another Notice of Motion (in CM14/2024). I note that CM14/2024 is made pursuant to section 27(6) of the Anti-Money Laundering Act 2006, as amended, which provides that “[a]n application for the discharge or variation of a restraint order may be made by any person affected by it”. In fact the application in CM14/2024 is headed “Application for Order for discharge of the Restraint Order under Section 27(6) of the Anti- Money Laundering (Amendment) Act 2008”, which is followed by the words “[t]he Application of the above-named Applicants respectfully shows …”. It is clear therefore that the Notice of Motion does not emanate from another Notice of motion but arises from an application.
22. This also disposes of the second point of law that the motion is defective in that any response to the application in CM14/2024 ought to have been canvassed properly in an answering or reply affidavit. The Court is hard put to understand how an application such as the one made in CM49/2024 to provide information and allow inspection of the Registers of Beneficial Ownership of the respondent companies could have been made by affidavit. Applications are made by way of pleadings which should contain the remedies sought. The averments in an affidavit are not pleadings but the written evidence on oath of the deponent which is similar to the oral testimony on oath of a witness, except that the former is in writing while the latter is not. Affidavit evidence supports the application. For those reasons I find that the application in CM49/2024 was properly made by way of Notice of Motion.
23. I also do not find any merit in the third point of law raised by the respondent companies. This is to the effect that the motion in CM49/2024 is defective in that it is made pursuant to the Beneficial Ownership Act whereas the application in CM14/2024 emanates from the Anti- Money Laundering Act 2006 (as amended). Laws do not exist in a vacuum. There are numerous laws which relate to and apply to the same subject matter. The Beneficial Ownership Act, 2020, as stated in its section 2(1), applies to legal persons (which covers a company (which includes a company incorporated or registered under the Companies Act), association, international business company, protected cell company, company incorporated under the Companies (Special Licences) Act, partnership under the Civil Code and foundations) and legal arrangements (which covers a trustee of a trust and a general partner of a limited partnership). The respondent companies cannot therefore be heard to say that a power given or a procedure provided for under an Act (in this case the Beneficial Ownership Act), which is applicable to a person/entity (in this case a company incorporated under the Companies Act), cannot be used in an application or other proceeding made pursuant to another Act (in this case the Anti-Money Laundering Act 2006 (as amended)) in respect of that person/entity.
24. As for the respondents’ submissions questioning Kevin Stephenson’s authority to swear an affidavit on behalf of the ACCS, I note that Mr Stephenson states that he is authorised to swear the affidavit pursuant to section 9 of the Anti-Corruption Act 2016 as amended, and not under the Anti-Money Laundering Act 2006 as amended as suggested by the respondents.
25. We now turn to the merits of the application. In paragraph 2 of his affidavit in support of the Notice of motion in CM49/2024 dated 14^th March 2024, Mr Stephenson expresses his belief that neither Bois Sagailles nor Bois Cato has complied with their obligations under the Beneficial Owners Act 2020 to identify and declare their beneficial owner(s). This is also stated in his affidavit of the same date in response to the application to discharge the Restraint Order in CM14/2024. He states that this has been confirmed by the Financial Intelligence Unit and in support of which he produced Exhibit KS/5 – a letter from the FIU dated 14^th March 2024 in response to a request from the ACCS pertaining to the beneficial ownership of Bois Sagailles and Bois Cato. The letter states that “a search was conducted on the Seychelles Beneficial Ownership (“BO”) data base in accordance with regulation 16(11) of the Beneficial Ownership Regulations, 2020. The BO Database returned no results for the search.”
26. According to paragraphs 3 and 4 of Mr Stephenson’s affidavit in support of the Notice of motion in CM49/2024 dated 14^th March 2024, the information and matters which the ACCS seeks to compel Bois Sagailles and Bois Cato to provide, have been requested from them pursuant to section 14 of the Beneficial Owners Act 2020, but they have not responded to the request. In that regard I note that exhibited to Mr Stephenson’s affidavit in reply to the application for discharge of the Restraint Order in CM14/2024 dated 14 March 2024 are four letters dated 29^th February 2024. Two of the letters are addressed to Mr Robin Richmond and the other two to Ms Anne Alcindor (Exhibit KS/6), requesting the same information as sought in CM49/2024. The letters read in relevant part as follows:

Pursuant to section 14 of the Beneficial Ownership Act 2020, I hereby request that you provide the ACCS and the Court with the following information, pursuant to your obligations under the Beneficial Ownership Act, 2020:

 

1. Confirmation that you have at all material times kept a register of beneficial owners;
2. The information contained on the register of beneficial owners;
3. Confirmation that the details contained on the register have been filed with the Financial Intelligence Unit (‘FIU”), and the date of filing;
4. Confirmation of whether there has been any change of Beneficial Ownership; and, if appropriate, whether the FIU were notified of changes and the date of notification;
5. Confirmation that you will provide the register to the ACCS and Court to inspect at Court at the next hearing …

 

27. In terms of the letters, failure to respond to the letters within 7 calendar days would result in an application by the ACCS to the Court for an order requiring the recipients of the letters to provide such information.
28. The issue for this Court’s determination in CM14/2024 (application for discharge of Restraint Order) turns on whether it is Robin Richmond who has beneficial ownership of Bois Sagailles and Bois Cato, in which case the application for discharge of the Restraint Order against these companies and their assets must be granted; or if it is Mukesh Valabhji who has such beneficial interest in which case the application must be dismissed.
29. Mr Richmond maintains that he is the beneficial owner of Bois Sagailles and Bois Cato. In support he has brought the following evidence:

1. Exhibit RR1 - The registered Memorandum of Association of Bois Sagailles dated 28^th July 1994 showing that Robin Richemond (holding 11 shares) and Noelin Didon (holding 1 share) are the original subscribers and shareholders of the company.
2. Exhibit RR2 - The registered Memorandum of Association of Bois Cato dated 9^th June 2010 showing that Robin Richemond (holding 90 shares) and Noelin Didon (holding 10 shares) are the original subscribers and shareholders of the company.
3. Exhibits RR3 & RR4 - The Register of Directors and Secretaries, Register of Shareholders and the Particulars of Directors and Secretaries purporting to show that Noelin Didon resigned as a director of Bois Sagailles on 15^th January 2019 and of Bois Cato on 7^th January 2020 and ceased to be a shareholder of those companies as of the aforementioned dates, and was replaced by Anne Alcindor both as director and shareholder of the companies.
4. Exhibit RR5 - Anne Alcindor’s affidavit dated 29^th August 2023 in which she states that she holds nominal shares in Bois Sagailles and Bois Cato for Robin Richmond to which is exhibited AA1 – her purported statement to the ACCS.
5. Exhibit RR6 – Documents relating to Classica Limited.
6. Exhibit RR7 – Affidavit of Ms Genevieve Contoret, Robin Richmond’s ex-wife made in matrimonial property proceedings between them, in which she claims a share in Robin Richmond’s shares in Bois Sagailles and Bois Cato.

30. Without prejudging the application for discharge of the Restraint Order in CM14/2024, it is evident that the evidence adduced by Bois Sagailles and Bois Cato does not prove that Robin Richmond is the beneficial owner of the companies.
31. Section 3 of the Beneficial Owner’s Act, 2020 defines “beneficial owner” as meaning “one or more natural persons who ultimately own or control a customer or the natural person or persons on whose behalf a transaction is being conducted and includes those natural persons who exercise ultimate effective control over a legal person or a legal arrangement”.
32. Regulation 3 of the Beneficial Ownership Regulations, 2020 further provides that:
    1. 1. 3. (1) For the purposes of these regulations, the beneficial owner in relation to a legal person includes but is not limited to –

1. one or more natural persons who ultimately have a controlling ownership interest in a legal person; and
2. to the extent that there is doubt under sub-regulation (1)(a) as to whether the person with the controlling ownership interest is the beneficial owner or where no natural person exerts control through ownership interest, the natural person, if any, exercising control of the legal person through other means; or
3. if no such person exists or no such person may be identified under sub-regulation (1)(a) and (b), the natural person who holds the position of a senior managing official of the legal person.

 

(2) For the purposes of sub-regulation (1)(a), the beneficial owner of a legal person (except the beneficial owner of a foundation, a partnership under the Civil Code of Seychelles Act 2020 (Act 1 of 2021) or a limited partnership under the Limited Partnerships Act (Cap 281)), shall be a natural person who ultimately owns or controls, whether directly or indirectly, ten percent or more of ownership interest including the shares or voting rights of the said legal person

 

(3) For the purposes of sub-regulation (1)(b), exercising control through other means includes, but is not limited to –

(a) the right to appoint or remove the majority of the board of directors of a legal person;

(b) where the person with controlling ownership interest is dominated by another person because of a familial or employment relationship;

(c) where another person holds certain powers in relation to the legal person which are likely to be used in practice to affect the decisions taken by that person with the controlling ownership interest; or

(d) any control over a legal person other than the control by ownership of any interest.

[…]

 

33. Exhibits RR1 and RR2 - the Memorandums of Association of the two companies - only show the original subscribers of the memorandum and shareholders of the companies and their shareholding but this does not mean that Mr Richmond who holds the majority shareholding is the beneficial owner of the companies within the meaning of the term given by the Beneficial Ownership Act, 2020 and regulations made thereunder. The same is true of Exhibits RR3 and RR4 – the Register of Directors and Secretaries and the Particulars of Directors and Secretaries purporting to show that Noelin Didon resigned as a director of Bois Sagailles on 15^th January 2019 and of Bois Cato on 7^th January 2020 and ceased to be a shareholder of those companies as of the aforementioned dates, and was replaced by Anne Alcindor both as director and shareholder of the companies. Exhibits RR3 and RR4 only show who are the current directors, shareholders and secretaries of the companies, but not the beneficial owner(s). Similarly, Genevieve Contoret’s affidavit (Exhibit RR7) and Anne Alcindor’s affidavit (Exhibit RR5) and her statement (Exhibit AA1), in my view, contain no such evidence of the beneficial ownership of the companies.
34. The ACCS, on the other hand, has brought evidence that Mukesh Valabhji is connected to the two companies: Mr de Silva has in his statement (Exhibit KS1) stated that Mukesh Valabhji is the beneficial owner of the respondent companies; certain documents relating to the companies or properties now in their ownership were retrieved at his home or on the premises of companies connected to him; and the two companies are listed as Mukesh Valabhji Group together with other companies in which Mukesh Valabhji has beneficial ownership. In that regard I wish to make an observation that Robin Richmonds’s attempt to explain why Bois Sagailles and Bois Cato appear as a related party in CPTL’s balance sheet is not very convincing. However this evidence still does not show who is the beneficial owner of the companies.
35. Under section 5 of the Beneficial Owner’s Act 2020, there is an obligation on companies to maintain a register of beneficial owners. Section 5 provides as follows:

5. (1) Every legal person and legal arrangement shall maintain a register, to be known as a register of beneficial owners, at the principal place of business of its resident agent in Seychelles, containing the following information in respect of every beneficial owner of such legal person or legal arrangement –

1. the name, residential address, service address, date of birth, nationality, national identification number or equivalent (if any) and tax identification number or equivalent (if any);
2. details of each beneficial owner’s beneficial interest, as may be prescribed by regulations;
3. the date on which a person became a beneficial owner;
4. the date on which a person ceased to be a beneficial owner;

(d1) where a nominee has been appointed or ceased to be a nominee –

1. the date on which the nominee has been appointed;
2. the date on which the nominee ceased to be a nominee

5. where a nominee holds interest on behalf of the beneficial owner, the following particulars shall be included in an annexure to the register of beneficial owners-

1. in the case of –

1. a natural person –

the name, residential address, service address, date of birth, nationality, national identification number or equivalent (if any) and tax identification number or equivalent (if any) of each nominee holding the interest on behalf of the beneficial owner and the particulars and details of the interest held by the nominee;

2. a legal person –

the name, registered address, incorporation or registration number, date of incorporation or registration, jurisdiction of incorporation or registration, tax identification number or equivalent (if any) and the information and details of the interest held by the nominee; and (ii) the identity of the nominator, and where the nominator is a legal person, the identity of the beneficial owner the nominator.

2. the identity of the nominator, and where the nominator is a legal person, the identity of the beneficial owner the nominator.

6. in the case of any registrable legal person –

1. the name of the registrable legal person;
2. the incorporation number or its equivalent of the registrable legal person;
3. the date of incorporation of the registrable legal person;
4. the registered address of the registrable legal person;
5. the basis upon which the legal person is designated as a registrable legal person;
6. the date on which a person became a registrable legal person; and
7. the date on which a person ceased to be a registrable legal person.

 

(1a) A legal person or legal arrangement shall not include the name of a registrable legal person in the register of beneficial owners unless it has received sufficient proof that –

1. the person has uploaded its accurate and up to date beneficial ownership information on the database under section 13; or
2. where the registrable legal person is a listed company, the person has complied with the requirements under section 13(5a).

 

(2) Every legal person and legal arrangement, as the case may be, shall maintain accurate and up to date information required under subsection (1) in the register of beneficial owners.

 

(2a) The information under subsection (1) shall only be entered in the register of beneficial owners once all the required information of that beneficial owner has been confirmed by the beneficial owner.

 

(3) A person who fails to maintain the register of beneficial owners under subsection (1) or to maintain accurate and up to date information under subsection (2) by the legal person or the legal arrangement, as the case may be, shall be liable to a penalty not exceeding SCR150,000 for each such failure.

(4) In case of contravention of the provisions of subsection (1) or subsection (2), in addition to the penalty upon a legal person or a legal arrangement, as the case may be, every director, councillor of the legal person or a partner or a general partner of the legal arrangement, as the case may be, shall also be liable to a penalty not exceeding SCR150,000 for each contravention.

 

(5) For the purposes of subsection (1)-

(a) “nominee” means a person who has been instructed to act on behalf of another person (the nominator) in a certain capacity regarding a legal person, and includes a person who holds legal title over shares or other membership interests in a legal person on behalf of another person (the nominator); and

 (b)“nominator” means a person who instructs a nominee to act on the nominator's behalf in a certain capacity regarding a legal person, and includes a person who instructs a nominee to hold legal title over shares or other membership interests or any other control in a legal person on the nominator's behalf.

 

(6) The resident agent shall, within 14 days of the establishment of the register of beneficial owners (including the annexures to the register of beneficial owners), cause the information to be uploaded on the database.

 

(7) A person who fails to comply with the provisions of subsection (6) shall be liable to a penalty not exceeding SCR150 000.

 

 (8) The minimum threshold for identification of beneficial owners of legal persons or legal arrangements shall be such as may be prescribed by regulations.

 

36. Section 6 of the Act further provides that “The register of beneficial owners maintained under subsection (1) of section 5 shall be the prima facie evidence of any matter arising under this Act”. Hence unless rebutted, the beneficial owner of a company as shown in the register would constitute proof of the beneficial ownership of a company.
37. Section 13(1) and (2) of the Act also provides for a Beneficial Ownership database to be established and maintained by the FIU. Under section 13(5) responsibility for the accuracy of the beneficial ownership information being uploaded on the database is on the company to which the information relates. Section 13(6) makes it an offence to intentionally furnish wrong information relating to a legal person or a legal arrangement onto the beneficial ownership database rendering the resident agent of such legal person or legal arrangement liable on conviction, to imprisonment for a term not exceeding 2 years or to a fine not exceeding SCR150,000 or to both. It would appear from Exhibit KS/5 (letter of 14^th March 2024 from the FIU) that no Beneficial Ownership information regarding Bois Sagailles and Bois Cato was uploaded onto the database.
38. The Register of Beneficial Owners required to be maintained under section 5 is required to be kept confidential under section 11(1) of the Act, although provision is made to allow inspection of such register to certain persons under that same section. Provision is also made for certain regulatory authorities (including the ACCS) to have access to beneficial owner information and to inspect the Beneficial Owner Register of a company under section 14 which reads as follows:

14. (1) Where a resident agent is requested by a written notice or Order, as the case may be, to provide any information required to be maintained in terms of this Act or to inspect the register, including any other documents, so maintained in terms of this Act-

1. by any competent authority;
2. by any law enforcement authority;
3. by the Registrar of Companies;
4. by the Registrar of Associations;
5. by the Seychelles Licensing Authority in respect of the legal person or legal arrangement licensed under the Licences Act or a legal person or legal arrangement applying for a licence under the Licences Act or any other Act;
6. by the Central Bank of Seychelles in respect of institutions under its regulatory control or a legal person or legal arrangement applying for a licence under the Financial Institutions Act or any other Act;
7. by Order of a Court;

 

the resident agent shall provide the information or make available for inspection the register of beneficial owners within the time specified in the written notice or Order.

 

(2) A resident agent, who or which fails to comply with subsection (1) shall be liable to a penalty not exceeding SCR150,000 for each such failure.

 

(3) A resident agent, who or which intentionally provides false or misleading information as requested under subsection (1) commits an offence and shall be liable on conviction to imprisonment for a term not exceeding 2 years or to a fine not exceeding SCR150,000 or to both.

 

39. According to Kevin Stephenson both respondent companies were notified pursuant to section 14 by way of letters dated 29^th February 2024 addressed to Mr Robin Richmond and Ms Anne Alcindor to provide information on the beneficial ownership of Bois Sagailles and Bois Cato and to allow inspection of the Register of Beneficial Owners (Exhibit KS/6) which they did not respond to. If they had done so it would have permitted the ACCS to ascertain if it was really Mr Robin Richmond who is the beneficial owner of the companies without having to resort to the present motion.
40. It is the view of this Court that in the absence of such evidence to show that Mr Richmond is the sole beneficial owner of Bois Sagailles and Bois Cato as he claims, the sole means of ascertaining the same for the purpose of determining the application for discharge of the Restraint Order in CM14/2024 is by inspecting the Register of Beneficial Owners of these two companies, which the Court is empowered to order under section 14(1)(g) of the Beneficial Ownership Act (see para 37 above) which imposes an obligation on the company or its registered agent to comply with such an order.
41. In that regard I note that the respondents contend that the ACCS’ Notice of Motion does not indicate the specific provision under which the motion is brought and pursuant to which the Court is empowered to grant the reliefs sought. They submit that the relief sought by the ACCS in CM49/2024 is injunctive in nature, for which the applicable procedure is that set out in section 304 of the Seychelles Code of Civil Procedure (“SCCP”) – namely an application for a writ of injunction by a plaintiff after commencement of his action. It is submitted that the applicant in this matter has erroneously filed a “purported mandatory injunction emanating from a motion to discharge a restraint order” for which there exists no legal provision, I suppose because such motion cannot be made under section 304. It is further submitted that there is no legal basis for a motion of this nature “[e]ven if one were to consider the Courts Equitable powers pursuant to the Courts Act, which has not been pleaded or averred by the Applicants and any averments that there exists no other legal remedies for the Applicant to make such an application.” The respondents also submit that aside from appearing to be injunctive in nature, the applicant’s motion purports to be a request for further and better particulars provided for under section 86 of the SCCP. Having found that the Court is empowered under section 14(1)(g) of the Beneficial Ownership Act to make the Orders sought, I find no merit in these submissions.
42. As to the lack of exhibited evidence in support of the ACCS’ Notice of Motion, while every application should as a rule be supported by the necessary exhibits, and the Court should not be expected to sift through other motions and applications made in the main case/application, a rule which this Court adheres to where necessary, the circumstances of each case are different, and strict adherence to such rule is not required in each and every case. In the present motion this will not cause any prejudice to the parties. I further note that the present motion CM49/2024 arises in CM14/2024, and that in CM49/2024 both parties rely on documents exhibited to their affidavits filed in CM14/2024. The respondents have also not exhibited any documentary evidence to Robin Richmond’s affidavit in reply to the present motion, in which he states at paragraphs 8 and 9:

8. That I aver that the motion is frivolous and vexatious noting the averments in the initial affidavit in support of CM14/2024 and my supplementary affidavit in the same case.
9. That I aver that the affidavit is unequivocal in terms of my averments which I have expressed stated and provided documentary evidence in support of my shareholding and ownership of the two Respondent companies herein.

 

43. The respondents cannot complain that the applicant has done something which they have done themselves. In any case I find that neither party has been prejudiced by the failure of the other party to exhibit documentary evidence to their affidavits in CM149/2024.  
44. In the circumstances, I partly accede to the ACCS’ motion. As it is clear that the details contained in Register OF Beneficial Owners was never lodged with the FIU as they could not be found on the Beneficial Owners database, there is no necessity for the companies to confirm the same or to confirm that any changes of Beneficial Ownership were notified to the FIU.

Order

45. Accordingly, this Court orders the resident agents (as defined in section 3 of the Beneficial Owners Act and section 179 of the Companies Act) of the respondent companies in CM49/2024, namely Bois Sagailles and Bois Cato to, within 14 days of this Order:

1. provide to this Court the information required to be kept on the register of beneficial owners under section 5 for each company;
2. inform this Court whether there has been any change of Beneficial Ownership in each company;
3. make the Register of Beneficial Owners maintained by each company available to this Court for inspection by the Court and the ACCS.

46. The information and register provided pursuant to the Order at paragraph [45] above shall be kept under seal by the Registrar of the Supreme Court, to maintain the confidentiality of the same.

Signed, dated, and delivered at Ile du Port on 2^nd July 2024.

 

 

____________

Carolus J