Government of Sey v Padayachy (MC 05/2024) [2024] SCSC 140 (22 March 2024)

Adeline, J

1. This is a Ruling on Motion on Notice dated 7^th February 2024, brought by the Government of Seychelles (“the Applicant”) against one Ali Padayachy of Brilliant, Mahe, Seychelles which motion is supported by an affidavit of facts and evidence as required by law, duly sworn by one Sergeant (“Sgt”) Dave Jeanne, a Police Officer based at the Financial Crime Investigation Unit (“FCIU”) of the Seychelles Police Force.
2. In furtherance of such motion, the Applicant prays this Court for the following reliefs, namely;

“1. A disposal order pursuant to section 5 of the Proceeds of Crime (Civil Confiscation) Act, 2008 as amended (“the POCCCA”), that the whole of the specified property be transferred to the Republic.

2. An order providing for notice of any such orders to be given to the Respondent or any person directed by the Court, and

3. Such further or other orders as the Court shall deem just and proper.”

3. The specified property is a HONDA FIT bearing registration number S36544 valued at Seychelles Rupees Four Hundred Thousand (SCR 400,000) subject to an interlocutory order made by the Supreme Court pursuant to Section 4 of POCCCA on the 17^th May 2022.
4. The Notice of Motion for the application for the disposal order being sought for was served on the Respondent, Ali Padayachy, on the 20^th February 2024, who failed to put appearance in Court to exercise his right to be heard in reply to the application.  The application is therefore uncontested, and the affidavit evidence of Sgt Jeanne is uncontroverted.
5. It is to be noted, that on 17^th May 2022, an order was made by the Court pursuant to Section 4 of POCCCA prohibiting the Respondent or any person having notice of the order from disposing or otherwise dealing with the specified property.  The Court also made an order pursuant to Section 8 of POCCCA appointing Inspector Terence, Roseline receiver of the specified property.
6. The interlocutory orders were made on the basis of the belief evidence of Inspector Terence Roseline who sworn the affidavit in support of the application for the orders made.  In his affidavit, Inspector Roseline had deponed to the effects that the specified property constituted directly or indirectly, benefit from criminal conduct, or was acquired in whole or in part with or in connection which property that directly or indirectly constituted benefit from criminal conduct.
7. The criminal conduct shown by the affidavit evidence of Inspector Terence Roseline was drug trafficking and money laundering.
8. The disposal order of the specified property being sought for is based on the following grounds;

“(a) that an interlocutory order made by her Ladyship Andre (as he was) on the 17^th May 2017 under Section 4 of POCCCA has been inforce for not less than 22 months in relation to the specified property.

(b) that there is no appeal pending before the Court of Appeal in respect of the interlocutory order or any other order under Section 4 of POCCCA, and

(c) that there is no application pending under Section 4(3) of POCCCA before any Court in respect of the said property.”

9. In his affidavit in support of the application, and as part of his deposition, Sgt Jeanne makes references to the interlocutory order of her Ladyship Justice Andre (who was then Judge Andre) made pursuant to section 4 of POCCCA on the 17^th May 2022.  It is noted by this Court, that with regard to the said interlocutory order, the Respondent did not oppose or contest the application for the making of the order, and that Justice Andre (Judge Andre then) was satisfied, that on account of the affidavit and the oral evidence of Inspector Roseline, the conditions for the making of the order prescribed under Section 4 read with Section 9(1) (a), (b), (c) and (2) (a) and (b) of POCCCA were met at the required standard spelt out under Section 9(3) of POCCCA.
10. As a consequence thereof, her Ladyship made the interlocutory order prohibiting the Respondent from disposing or otherwise dealing with the whole or any part of the specified property (HONDA FIT, S36544) or diminishing its value.  Her Ladyship appointed Inspector Terence Roseline as receiver over the specified property under Section 8(1) of POCCCA.
11. The disposal order being sought for by the Applicant is in pursuance of Section 5 of POCCCA.  For the Court to grant such an order, it has to have regards to the following provisions under Section 5 couched in the following terms;

“Unless it is shown to its satisfaction by the Respondent or any person claiming any interest in the property, that the property does not constitute, directly or indirectly, proceeds of criminal conduct and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of criminal conduct”

12. In other words, the Court is statutorily bound to make the disposal order unless it is shown that the specified property does not constitute, directly or indirectly, proceeds of criminal conduct and was not acquired, in whole or in part, with or in connection with property that directly or indirectly, constitutes proceeds of criminal conduct.  It must therefore be noted, that the Respondent opted not to oppose or contest the application, and therefore waived his right to be heard although he was given the opportunity to.  The Court is unaware of any person having interest in the property as none having put him or herself forward to be heard.  Furthermore, the Court has not heard any serious risk of injustice to any person if the order is made. 
13. In the final analysis, therefore, on account of the uncontroverted affidavit evidence of Sgt Dave Jeanne in the light of the pleadings as well as the documents exhibited to the affidavit, I am satisfied, that the Applicant has made out a case for the issue of a disposal order in respect of the specified property, namely, a HONDA FIT, S36544.
14. Therefore, pursuant to Section 5 of POCCCA, I hereby make a disposal order in favour of the Applicant for the disposal of the specified property, that is to say, the HONDA FIT S36544 be transferred unto the Republic.
15. The Respondent shall be notified of such order by having a copy of the same served on him.

Signed, dated and delivered at Ile du Port on 22^nd March 2024.

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Adeline J