Adeline J,
- This court is seised of an application dated 26th December 2023, filed by one Sarah, Zarqani, Rene (“the Applicant”) who is the 2nd Defendant in the case of Anti-Corruption Commission vs Mukesh Valabhji and another, filed in court as CR 114 of 2021, and a party against whom a restraint order has been made by the court in ex parte Anti-Corruption Commission filed as XP 02/2023.
- The application is supported by an affidavit sworn by the Applicant to which are exhibited the necessary documentary evidence to support the basis for the variation of the restraint order being sought for pursuant to Section 27 (6) of the Anti-Money Laundering (Amendment) Act, 2008.
- By her application, the Applicant applies for a variation of the restraint order that would make funds available to her to meet her reasonable living and legal expenses as well as to service her debts.
- In a preliminary response by the Anti-Corruption Commission, (“the Respondent”) it indicated, interalia, that it agrees in principle to the proposed subdivision of parcel H5404 for the extraction of 5000 square metres for sale on condition that the subdivision is sold at commercial value and that the proceeds of sale are credited into the Applicant’s personal bank account and become subject to the restraint order.
- As regards to the proposed expenses featured in the Schedule of Expenses exhibited as A24, the Respondent indicated, that they are in agreement for a variation of the restraint order for funds to be made available for the Applicant to meet those expenses they regard as reasonable and “essential”, but not in agreement for funds to be made available in variation of the restraint order for payment of debts to Frankie Petrousse and to Ella Rene, until the latter produces sufficient proof of the relevant historic expenses made on behalf of the Applicant.
- In the light of the items featured in the Schedule of Expenses produced as exhibit A24 agreed between the Applicant and the Respondent, the parties entered a judgment by consent endorsed and made the judgment of this court.
- The salient aspects of the judgment by consent in variation of the restraint order includes;
- Permission given to the Applicant to sub divide and sell 5000 square metres of parcel H5404 at commercial value.
- The proceeds of sale of the subdivision of H5404 to be deposited in the Applicant’s Al Salam Bank savings account No 500000010758,
- Payment of monthly expenditure of SCR 126,000 for utilities, workers’ salaries, pensions, personal living expenses for the Applicant and her daughter Dawn Rene
- One-off payment of SCR 30,000 to settle a dental bill to Le Chantier Dental Clinic.
- Bi-Annual payment of the university of Queensland tuition fees for Dawn Rene upon provision of relevant invoices.
- In the proceeding of the 4th April 2024, learned counsel for the Applicant, informed the court that he has filed further affidavit with supporting documentary evidence as exhibits which was on the court’s record file. In her further affidavit, inter alia, the Applicant makes averments pertaining to other expenses incurred that she needs to settle, namely;
- Payment of invoice dated 27th February 2024 as cost of survey in the sum of SCR 33,000
- Payment of invoices from D&P Plant hire for cleaning of Property H5404 in the sum of SCR 7500.
- Payment of invoice from Michel Armstrong Garage for cost of repair of vehicle in the sum of SCR 4220, and for cost of servicing of vehicle in the sum of SCR 14100, and
- Payment for renewal of insurance policy in the sum of SCR 14,642.17.
- In a further affidavit, the Applicant takes issue with the objection of the Respondent to the payment of the debt owed to Mr Frankie Petrousse. She avers, that the property is already in her name and that the sum being requested for is already due to Mr Petrousse as consideration for having transferred the land in her name which is not rightfully hers until Mr Petrousse is paid. The Applicant also avers, that Mr Petrousse is contemplating legal action against her and ACCS. The Applicant further avers, that lawful repayment of the debt to Mr Petrousse cannot amount to a dissipation of assets.
- It is averred by the Applicant, that in respect of the debt in the sum of SCR 880,120 owed to Ella Rene, that she has received an affidavit from her containing averments as to the nature of the debt as well as the supporting documents exhibited. It is also averred by the Respondent, that the lawful payment of the debt to Ella Rene wouldn’t amount to a dissipation of assets.
- In answer to the further affidavit filed by the Applicant in support of her initial application, the Respondent acceded to the requests made by the Applicant which were then converted into a judgment by consent dated 2nd May 2024, which was endorsed by the court and made the judgment of this court.
- The permitted payments under the terms of the judgment by consent, are the following;
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- SCR 33,000 as survey fees in respect of approved sale of subdivision of H5404
- SCR 7,500 to D&P Plant Hire for excavation works for access road to subdivision of H5404
- SCR 10,000 to D&P Plant Hire for excavation works for access road to remainder of land after subdivision
- SCR 4,220 for payment of the Applicant emergency vehicle repair cost
- SCR 14,100 for full servicing of the vehicle.
- SCR 14,642.17 for payment of renewal of the vehicle’s insurance policy.
- SCR 9,570 for payment of the vehicle testing station fees and road fund license due as of 10th May 2024.
- SCR 2,300 for payment of spare parts for the Applicant’s vehicle (a set of radiator).
- SCR 22,035.72 equivalent to AED 5955 for importation of spare parts to repair the Applicant’s 20 year old vehicle.
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- It is noted, that two of the Applicant’s requests that remain in contention between the parties and are contested, which are not part of the terms of any of the judgment by consents because the parties could not reach an agreement, are;
- Payment of outstanding debts in the sum of SCR 2,474,673.18 to Mr Franky Petrousse for transferring land parcel Title B 1940 to the Applicant, and
- Payment of outstanding debt to Ella Rene who allegedly helped to pay the family living expenses in the total sum of SCR 880,120.
- It is within these background, that the parties to this application urge this court to hear their legal arguments on the law revolving around Section 27(1) and (2) of the Anti-Money Laundering Act, 2016 as amended prior to hearing the evidence pertaining to the merits of the application, given that there are also disagreements between the parties on the facts.
- In essence, the legal argument of learned counsel for the Applicant resolves around his proposition, that under Section 27(1) and (2) of the Anti-Money Laundering Act, 2006 as amended, the court is conferred with a discretionary power which can be exercised to vary the restraint order and allow payment of the debts to Mr Frankie Petrousse although the Respondent does not agree to. Learned counsel for the Applicant takes issue with the Respondent’s proposition that Section 27(2) of the Anti-Money Laundering Act “sets a high bar on the court’s discretion to vary a restraint order to allow provision for living expenses and legal expenses as the court thinks fit”.
- It was the submission of learned counsel, that he has made a comparative analysis of similar statutory provision under Section 77 of the English Criminal Justice Act, 1988 regulating the variation of restraint orders, the wording of which he submitted, is similar to Section 27 (1) and (2) of the Anti-Money Laundering Act, 2006 as amended. Learned counsel cited the case In the matter of X and in the Criminal Justice Act 1988, in which case he submitted, the point of contention was whether the court had a discretion to vary a restrain order under Section 77 of the Criminal Justice Act, 1988 for payment of debts. Section 77 of the Criminal Justice Act, 1988 is comprised of similar statutory provisions as under Section 27 (1) and (2) of the Anti-Money Laundering Act, 2006, as amended.
- Learned counsel submitted, that in that particular case, the court was confronted with a similar application as the instant one, in that, it had to determine an application for a variation of a restraint order which was being met with similar objection whilst challenging the jurisdiction and power of the court under Section 77 of the Criminal Justice Act, 1988. It was the submission of learned counsel, that the court found that it had jurisdiction under Section 77 (1) of the Criminal Justice Act, 1988. Learned counsel for the Applicant proceeded to quote the following extract taken from the judgment delivered on the 22nd April 2024;
“The high court may order as a restraint prohibit any person from dealing with any realisable property subject to such conditions and exceptions as may be specified in the order”, which learned counsel submitted is in line with Section 27 (1) and (2) of our Anti-Money Laundering Act, 2006 as amended. It was also the submission of learned counsel for the Applicant, that his construction of Section 27 (1) of the Anti-Money Laundering Act, 2006 as amended gives the court a wide discretion to consider matters over and above living expenses and legal expenses.
- It was argued by learned counsel, that although in the English case In the matter of the Criminal Justice Act 1988, the court did not grant the application for payment of the outstanding debt because the debt was not bona fide, the court explicitly made it clear, that it has jurisdiction to entertain such application. In his submissions, it was the contention of learned counsel for the Applicant, that the debt owed to Mr Franky Petrousse for the transfer of the Land parcel B1940 should be entertained by allowing further variation of the restraint order.
- Learned counsel submitted, that as per the affidavit of Mr Petrousse tendered as exhibit, litigation is being contemplated and if he is to proceed with litigation, that would affect the Applicant’s legal expenses because she would be subject to more litigation and would therefore affect her credibility given that it is a legitimate debt, Mr Petrousse having transferred his land in her name. All in all, the position taken by learned counsel for the Applicant, is that this court has a wide discretionary power under Section 27 (1) of the Anti-Money Laundering Act, 2006 as amended, to order a variation of the restraint order for the purpose of paying the debt owed to Mr Frankie Petrousse. Learned counsel did submit, that he fully understands the rationale behind the restraint order which is to ensure that the realisable property is secured with a view to satisfy the order. learned counsel also raised questions about the pecuniary order that the Applicant is likely to face in CR 114/2021 if convicted, stating, that nobody knows what sum it would be.
- In his submission in reply, learned counsel for the Respondent referred the court to the affidavit in reply dated 22nd April 2024, which interalia, seeks to bring clarity on the position in law regarding variation of restraint order. Learned counsel referred the court to paragraph 2 of this court’s ruling dated 21st August 2023, when the court had this to say;
“It is worth noting, that the court may make a pecuniary penalty order under Part 5 of the AMLA 2006 as amended, on application, after conviction and sentence of a person for criminal conduct to recover the benefits of such criminal conduct. To that end, therefore, the effect of the restraint order being sought for is to ensure that the property which is the subject of the benefit of criminal conduct is not dissipated to frustrate a pecuniary penalty order made after convictions.”
- It was the submission of learned counsel for the Respondent, that it by no means refute the suggestion that the court has a discretionary power to vary the restraint order to entertain the two contentious requests, but rather, that its position is that the ambit of such power is limited based on the interpretation of Section 27 (1) and (2) of the Anti-Money Laundering Act 2006, as amended. Learned counsel for the Respondent noted, that the debt to Mr Petrousse is in the total sum of SCR 2.47 million, and to Ms Ella Rene is in the total sum of SCR 880,000 which are substantial sums of money which are likely to affect the amount of money subject to the restraint order, which purpose is to protect a potential pecuniary penalty order likely to be made by the court, on application, in the event of a conviction. Learned counsel was of the view, that the whole rationale for the restraint order is to preserve the assets and not to allow payments and variation to the restraint order that would effectively dissipate the assets and therefore defeat the purpose of the restraint order.
- In his submission on the law, amongst other things, learned counsel had this to say;
“We accept that Section 27(1) gives the court a discretion on the conditions and exceptions as may be specified in that order. we accept that the court has a wide power because this is an order that is to be supervised by the court to protect the order of the court that seeks to make later in criminal proceedings”.
- Learned counsel then proceeded to add, that Section 27(1) has to be read alongside Section 27(2), which says, “without prejudice to the generality of subsection (1), and stated that even the provision of the statute is saying that subsection (2) has to be read subject to the general provision of subsection (1). It was also submitted by learned counsel, that the restraint order may make such provision that the court deems fit where the court considers it essential to do. In that light, it was further submitted by learned counsel, that Section 27(2) of the Anti-Money Laundering Act, 2006 as amended sets out the power of the court’s discretion to vary the restraint order to allow provision for living and legal expenses as the court thinks fit.
- Having heard the arguments of both parties to this application, the pertinent question is, which of the two arguments which I find more persuasive and will lead me to the correct conclusion. I pause for a minute to cite the provision of Section 27(1) and (2) of the Anti-Money Laundering Act 2006, as amended;
“27(1). The court may by order (in this Act referred to as a “restraint order”) prohibit any person from dealing with any realizable property, subject to such conditions and exceptions as may be specified in that order.
(2) Without prejudice to the generality of subsection (1), a restraint order may make such provision as the Court thinks fit for living expenses and legal expenses of the defendant where the court considers it essential to do so”.
- My reading of Section 27 (2) of the Anti-Money Laundering Act, 2006 as amended, instructs me, that statutorily, the court is empowered to vary a restraint order for the purposes of providing for living expenses and legal expenses, and that words “as the court thinks fit” means, that the court does have a discretionary power to make such decision where it is of the view that it is essential to do so. That being the legal position, means, that even when it comes to living expenses and legal expenses, the expenses have to be reasonable. In my considered opinion, this discretionary power allows the court to decide what is reasonable in a given circumstance so as not to allow excessive spending on high-end dining or designer clothing for example, in order to meet one’s lavish lifestyle, the consequence of which, may dissipate the assets subject to the restraint order.
- Furthermore, upon my reading of Section 27(1) of the Anti-Money Laundering Act 2006, as amended, I do subscribe with the view expressed by learned counsel for the Applicant, that the court does have a discretionary power to decide whether to entertain the Applicant’s requests for the court to sanction the payment of the debts to Mr Frankie Petrousse, and Ms Ella Rene, that would constitute further variation to the restraint order. Therefore, amid the submissions of learned counsels representing the parties, the point in contention between the parties is about judicial discretion and how it should be exercised. It is my considered opinion, that judicial discretion is the power or right to make official decisions using reasons and judgment.
- There is nowhere in any statute in this country, where the terms “judicial discretion” is defined, although, it is exercised regularly by the courts in our jurisdiction. The exercise of judicial discretion, is exercised when a judge is conferred with a power under a statute as in the instant case, the Anti-Money Laundering Act, 2006 as amended, and it requires the court to choose between several different but equally valid course of actions. It is a discretionary power for the judge to decide justly based on the facts and circumstances of the case laid before it. In many statutes, such discretionary power is conferred on the court through the use of the following words, such as for example, “as the court deems proper, as the court thinks reasonable, as the court otherwise direct,” and under Section 27(2) of the Anti-Money Laundering Act 2006, as amended, “as the court thinks fit”.
- In his submissions, learned counsel for the Applicant argued forcefully, that under Section 27 (1) of the Anti-Money Laundering Act, 2006 as amended, the court does have a discretionary power to entertain the Applicant’s request for a variation of the restraint order to allow payment of the debts owed to Mr Frankie Petrousse and Ella Rene and that it should make use of such power and make the appropriate order. learned counsel cited Section 77 (1) and (2) of the English Criminal Justice Act 1988 which he submitted, uses the same wording as in Section 27 (1) and (2) of the Anti-Money Laundering Act 2006, as amended, and which in the case of In the matter of X and In the matter of the Criminal Justice Act, 1988 on similar issue, the court did say that it does have a discretionary power to vary a restraint order to allow payment of debts.
- In its submissions in opposition to the making of the variation order, learned counsel for the Respondent focussed mainly on the scope and restrictions in the exercise of such discretionary power to vary a restraint order. To that end, it was the submission of learned counsel for the Respondent, that in exercise of such discretionary power, the court must consider why is there a restraint order in the first place, (the raison d’être of the restraint order). This suggests, that a discretionary power cannot be exercised in a vacuum. It has to be exercise in consideration of the whole facts and circumstances of the case put before the court, and in the instant case, such discretion has to be exercised with prudence so as not to defeat to purpose for which the restraint order exists.
- Within this background, in exercise of the discretion whether or not to allow further variation of the restraint order for payment of the debts, the court must bear in mind, the likelihood that a Pecuniary Penalty Order under Section 38(4) of Part 5 of the Anti-Money Laundering Act, 2006 as amended would be made, on application, if the Applicant is convicted and sentenced in CR 114 of 2021 for criminal conduct to recover the benefit of such criminal conduct. With that in mind, the effect of the restraint order in force, is to ensure that the realisable property which is the subject of benefit of criminal conduct is not dissipated to frustrate a pecuniary penalty order to be made after conviction and sentence.
- I therefore share the view of learned counsel for the Respondent, that the issue is not so much about a question of whether the court does or does not have a discretionary power to entertain the request for payment of the debts to Mr Petrousse and Ms Rene, which admittedly, it has, but rather, whether such power should be exercised in the instant case, given that the restraint order made by the court in XP 02/2023 remains necessary and has to be preserved in order to prevent the risk of dissipation of assets by the Applicant thereby frustrating any Pecuniary Penalty Order to be made by the court in the event of a conviction. Clearly, therefore, the court has to exercise its discretion with prudence in order not to defeat or frustrate the purpose for which the restraint order was made in the first place.
- I have also taken into consideration, the fact that the requests for payment of the debt to Mr Petrousse and Ms Ella Rene involve very large sum of money, which if sanction would have an adverse effect on the asset that is subject to the restraint order. For these reasons, I am therefore disinclined to grant the application, and accordingly, I dismiss the application for an order of this court for a variation of the restraint order for payment of the debt of SCR 2.47 million to Mr Franky Petrousse and for payment of SCR 880.00 to Ms Ella Rene.
Signed, dated and delivered at Ile du Port on 12 June 2024.
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Adeline J