Valabhji v ACCS (CM 57 of 2024) [2024] SCSC 172 (18 October 2024)

Carolus J

Background/ Pleadings/ Evidence

1. This Ruling arises from a Notice of Motion in CM57/2024, for leave to appeal to the Court of Appeal against this Court’s order dated 5^th April 2024 in CM122/2023 dismissing the applicant’s application to discharge the Restraint Order made by this Court on 31^st March 2023 in EXP 01/2022. The Notice of Motion is supported by an affidavit affirmed by the applicant.
2. In his affidavit the applicant avers that he is advised by his lawyers that the judgment is not an interlocutory judgment pursuant to section 12(2)(a)(i) of the Courts Act and that an appeal therefore lies to the Court of Appeal as of right. However, he then goes on to state that, in the event that leave to appeal is nonetheless considered necessary, the judgment involves a number of questions which ought to be the subject matter of an appeal, in accordance with section 12(2)(b) of the Courts Act. These questions arise from the following instances, in which he avers that this Court erred in law in its order of 5^th April 2024, namely:
   1. … when holding that a restraint order may be granted under section 26(1)(b) of the 2006 Act in criminal proceedings which have already been instituted. Subsections (1)(a) and (1)(b) of section 26 must have been intended to be procedurally mutually exclusive. The judgment records (at [26]) but fails to address this point of statutory construction.

 

1. 2. … when holding that the amendment of a charge constitutes the "institution of proceedings" for the purposes of section 26(3) of the 2006 Act. The term "institution of proceedings" was plainly intended by the National Assembly to be construed in accordance with its definition under section 67ofthe CPC and the learned judge was wrong to hold otherwise (Judgment, [66]-[68]). The reasoning underpinning this aspect of the Judgment was unsustainable and took into account irrelevant considerations. The fact that the bringing of a person to court to answer charges would be a cumber some procedure for adding a charge to an existing indictment (Judgment, [61]-[62], [67]) does not "lead to an absurdity" in the construction of section 26(3). Rather, the "absurdity" in the scenario postulated would result entirely from the Respondent having chosen to invoke an inapplicable statutory provision (section 26(1)(b)).

 

1. 3. … when holding that the filing of a motion seeking leave to amend charges constitutes the "making" of a "relevant application" for the purposes of section 26(3) of the 2006 Act. The reasoning in the Judgment ignored the statutory context, which calls for procedural urgency. Such a statutory imperative binds the Court as well as the prosecutor. The fixing of a hearing date for the making of any application is therefore also caught by the mandatory 7-day timeframe specified by section 26(3), and the learned judge was wrong to hold otherwise (Judgment, [70]).

 

1. 4. … when holding that a motion for permission to institute criminal proceedings constitutes a "relevant application" for the purposes of section 26(3) of the 2006 Act. This conclusion (Judgment, 61, 67) is not supported by reasoning. The statutory provisions do not define the term "relevant application " in the manner contended for in the Judgment. "Relevant application" must have been intended by the National Assembly to refer exclusively to the applications specified elsewhere within section 26 of the 2006 Act (i.e. applications under sections 38, 41 or 42 of the 2006 Act.

 

1. 5. … when holding that an all-assets restraint order could be granted pursuant to section 26(1)(b) notwithstanding the comparatively limited value of the subject matter of the proposed new charge which purported to justify the Respondent's application. This conclusion runs directly contrary to the reasoning at [61] of the Judgment which emphasizes the specificity of the conduct underpinning the making of a restraint order.

  

3. The ACCS opposes the Notice of Motion and has filed an affidavit in reply sworn by Kevin Stephenson, Officer/ Investigator and Review Team Manager at the ACCS, in which he seeks the dismissal of the application for leave to appeal.
4. In his affidavit Mr Stephenson points out that the applicant has claimed in his affidavit that an appeal lies as of right against this Court’s refusal to discharge the restraint order under section 12(2) of the Court’s Act, but that in contradiction he seeks leave of this Court to appeal to the Court of Appeal. Mr Stephenson therefore claims that there is no statutory basis on which this Court is asked to and could give leave to appeal.
5. He avers that the legislation under which the Restraint Order is made i.e. the Anti-Money Laundering Act (Act 15 of 2006) as amended by the Anti-Money Laundering (Amendment) Act (Act 18 of 2008) (the “AMLA”) does not provide for a statutory right of appeal against “the making, refusal to make, or any variation or discharge, in whole or in part, of a restraint order”.  Further that an appeal as of right only arises if the dismissal of an application to discharge a restraint order, firstly amounts to a civil finding, and secondly is not an interlocutory judgment under section 12(2)(a)(i) of the Courts Act.
6. It is his view that the Restraint Order in the present proceedings is a criminal remedy (and not a civil matter) and accordingly section 14 of the Courts Act (Appeals in criminal matters) governs the present proceedings, for the following reasons: the Restraint Order was applied for and made under section 26(1)(b) and section 27 of the AMLA, arising from criminal proceedings namely CR114/2021; the Order was made under a criminal statute which provides that breach of the Order carries a sanction of imprisonment; a Restraint Order can only be sought and imposed to restrain assets that are reasonably suspected of being proceeds of criminal conduct for the purpose of satisfying a Pecuniary Penalty Order, a criminal sanction, in the event the proceeds are so proved to be, on conviction following a criminal trial.
7. Mr Stephenson also avers that a distinction ought to be made between Restraint Orders under the AMLA and those made under the Proceeds of Crime (Civil Confiscation) Act 2008 (“POCA”), which creates a civil procedure for the restraining of assets believed to be the proceeds of criminal conduct. He points out that section 4 of the POCA provides that the making, variation, or discharge of a Restraint Order forms part of an “interlocutory order” which continues in force until disposal of the proceedings in relation to the restrained asset/s.
8. It is further averred that while the imposition of a Restraint Order is capable of interfering with the right to property enshrined in Article 26 of the Constitution, sub-article (2) of Article 26 qualifies that right to permit interference thereto “in the case of property reasonably suspected of being acquired by the proceeds of drug trafficking or serious crime”. Mr Stephenson avers that a Restraint Order can only be made under the AMLA if the Court is satisfied that there are reasonable grounds for thinking that a Pecuniary Penalty Order may be made, which test this Court found had been satisfied, and which finding cannot be challenged on the ground that the Court had misapplied the law. Rather, the appeal is grounded on a technical argument of construction which is said to justify the discharge of the Restraint Order.
9. Having opined that the Restraint Order in the present proceedings is a criminal remedy governed by section 14 of the Courts Act, Mr Stephenson goes on to address the jurisdiction of the Court of Appeal to hear appeals from decisions of the Supreme Court which is provided for under Article 120(1) and (2) of the Constitution, with the proviso “[e]xcept as this Constitution or an Act otherwise provides”. He points out that an Act does provide otherwise, in that section 342 of the Criminal Procedure Code (“CPC”) restricts the decisions, judgments or orders of the Supreme Court in criminal proceedings that are reviewable on appeal to those arising in defined circumstances on conviction after trial and/or sentence. Further that interlocutory appeals in criminal proceedings are expressly restricted by section 342(6) as such appeals are not expressly provided for in section 342.
10. He avers that the Court of Appeal can only exercise the power, authority and jurisdiction of the Supreme Court in determining an appeal if it possesses the jurisdiction to hear it, making reference to Ernesta & Ors v The Republic (SCA 07/2017) [11 August 2017], Esparon and Ors (SCA No. 2 & 3/2014) [12 August 2014] and Valabhji v The Republic (SCA CR08/2022) 2023 SCCA 1 (10 February 2023). He averred that the legislature has not adopted the reasoning that the Court of Appeal has jurisdiction to hear appeals beyond that allowed in Article 120(2) of the Constitution read with section 342(6) of the Criminal Procedure Code, and that the legislature has re-stated the limited circumstances in which an appeal from the Supreme Court lies to the Court of Appeal in Rule 18(2) of the Court of Appeal of Seychelles Rules 2023, which came into operation on 13^th November 2023, after the Court of Appeal decision on bail. Rule 18(2) provides that “Every notice of appeal shall in a criminal case state whether the appeal is against both conviction and sentence or conviction or sentence only or any decision made on conviction, and in a civil case whether it is against the whole or part of the decision of the Supreme Court”. He states that Rule 18(2) is mirrored in Article 19(11) of the Constitution (Right to fair and public hearing), which provides that “Every person convicted of an offence shall be entitled to appeal in accordance with the law against conviction, sentence and any order made on the conviction”. Mr Stephenson emphasises that the legislature made clear its intention to restrict appeals to convictions and or sentence and decisions on conviction in criminal matters by enacting section 342 of the Criminal Procedure Code, consistent with the interpretation of that provision and Article 120(2) of the Constitution in Ernesta (supra).
11. On the basis of the above Mr Stephenson forms the following conclusions contained in paragraph 22 of his affidavit, as follows:
    1. 1. 22. Conclusions

1. … the restraint order made on 31 March 2023 was made as part of a criminal remedy from which no statutory appeal lies.
2. … the Anti-Money Laundering statute provides for applications to vary or discharge as part of the same criminal remedy.
3. … this Honourable Court therefore has no jurisdiction to grant leave to appeal.
4. … by virtue of Art. 120(2) of the Constitution read with s342(6) of the Criminal Procedure Code the Court of Appeal has no jurisdiction to hear an appeal against the dismissal of an application to discharge a restraint order.
5. … there is no dispute that on the evidence the Restraint Order in XP01/2023 was properly applied for and made and that the application to discharge was based on a technical argument of statutory construction.
6. … the Court’s construction of s26(3) of the Anti-Money Laundering Act 2006 (as amended) is one open to the Court and cannot properly be said to be to be an error in law.

 

12. Both parties have filed written submissions in support of their respective positions, which shall be referred to in the analysis below as appropriate.

The Applicable Law

13. The jurisdiction of the Court of Appeal is provided for under Article 120 of the Constitution which provides in relevant part as follows:
    1. 1. 120. (1) There shall be a Court of Appeal which shall, subject to this Constitution, have jurisdiction to hear and determine appeals from a judgement, direction, decision, declaration, decree, writ or order of the Supreme Court and such other appellate jurisdiction as may be conferred upon the Court of Appeal by this Constitution and by or under an Act.  

(2) Except as this Constitution or an Act otherwise provides, there shall be a right of appeal to the Court of Appeal from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court.

(3) The Court of Appeal shall, when exercising its appellate jurisdiction, have all the authority, jurisdiction and power of the court from which the appeal is brought and such other authority, jurisdiction and power as may be conferred upon it by or under an Act.

(4) Subject to this Constitution and any other law, the authority, jurisdiction and power of the Court of Appeal may be exercised as provided in the Rules of the Court of Appeal.

 

14. In criminal matters, section 14 of the Courts Act provides:

14. Appeals from decisions of the Supreme Court in criminal matters shall be governed by the Criminal Procedure Code and by any other law now in force or to be enacted.

 

15. The Criminal Procedure Code contains provisions for appeals from decisions of the Supreme Court to the Court of Appeal in its section 342, as follows:
    1. 1. 342. (1) Any person convicted on a trial held by the Supreme Court may appeal to the Court of Appeal –

1. against his conviction, other than on a conviction based on the person’s own plea of guilty –

1. on any ground of appeal whenever the penalty awarded shall exceed six months’ imprisonment or one thousand rupees;
2. on any ground of appeal which involves a question of law alone;
3.  with the leave of such Court of Appeal or upon a certificate of the Judge who tried him that it is a fit case for appeal on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact or on any other ground which appears to the Court to be a sufficient ground of appeal;

2. against the sentence passed on his conviction with the leave of such Court of Appeal, unless the sentence is one fixed by law.

 

(2) Any person who has been dealt with by the Supreme Court under section 7 [committal for sentence] may appeal to the Court of Appeal as set out in paragraphs (a) and (b) of subsection (1) as if he had been both convicted and sentenced by the Supreme Court, whether the Supreme Court used its powers of revision or not.

 

(3) Irrespectively of any appeal and whether a case be appealable or not, the Judge may reserve for the consideration of the Court of Appeal any question of law decided by him in the course of any trial. The question or questions so reserved shall be stated in the form of a case prepared and signed by the Judge himself; and such case shall be transmitted by him at the earliest convenient opportunity to such Court of Appeal: Provided that nothing herein contained shall exempt the Judge from giving his own judgement on any such questions.

 

(4) The Judge may in his discretion, in any case in which an appeal to the Court of Appeal is filed or in any case in which a question of law has been reserved for the decision of such Court of Appeal, grant bail pending the hearing of such appeal or the decision of the case reserved.

 

(5) An application for bail under this section shall be by motion, supported by affidavit, served on the Attorney General, and may be heard in Chambers.

 

(6) Except as it is otherwise provided in this section an appeal shall not lie against an acquittal, conviction, decision, declaration, decree, direction, order, writ or sentence passed by the Supreme Court.

 

16. Leave to appeal from decisions of the Supreme Court to the Court of Appeal in civil matters is provided for under section 12 of the Courts Act as follows:
    1. 1. 12. (1) Subject as otherwise provided in this Act or in any other law, the Court of Appeal shall, in civil matters, have jurisdiction to hear and determine appeals from any judgement or order of the Supreme Court given or made in its original or appellate jurisdiction.

 

(2)(a) In civil matters no appeal shall lie as of right -

                        (i)     from any interlocutory judgment or order of the Supreme Court; or

(ii)    from any final judgment or order of the Supreme Court where the only subject matter of the appeal has a monetary value and that value does not exceed ten thousand rupees.

 

(b) In any such cases as aforesaid the Supreme Court may, in its discretion, grant leave to appeal if, in its opinion, the question involved in the appeal is one which ought to be the subject matter of an appeal.

 

(c) Should the Supreme Court refuse to grant leave to appeal under the preceding paragraph, the Court of Appeal may grant special leave to appeal.

 

(3) For all the purposes of and incidental to the hearing and determination of any appeal, and the amendment, execution and enforcement of any judgment or order made thereon, the Court of Appeal shall have all the powers, authority and jurisdiction of the Supreme Court of Seychelles and of the Court of Appeal in England.

 

(4) In this section the expression “civil matters” includes all non-criminal matters.

 

Analysis

17. The issue for this Court’s determination is whether leave to appeal against this Court’s refusal to discharge the Restraint Order made in EXP01/2022 is required. This will depend on whether the order dismissing the application to discharge the Restraint Order was made in a criminal or a civil matter. While the applicant contends that the proceedings in which the order of dismissal was made are civil in nature, the ACCS holds the view that they are criminal proceedings.
18. According to the ACCS no appeal lies to the Court of Appeal against the order of this Court in terms of Article 120(2) of the Constitution read with section 342 of the Criminal Procedure Code as the order was not made after conviction, and therefore there is no necessity for the granting of leave to appeal. The applicant on the other hand, submits that “it is clear beyond argument that a restraint order is a civil not a criminal matter”. He further submits that a Restraint Order is a final order (in which case appeal lies as of right, except where the monetary value of the subject matter of the appeal does not exceed ten thousand rupees in which case leave to appeal is required) and not an interlocutory order (which requires leave to appeal). The Supreme Court may grant such leave if “the question involved in the appeal is one which ought to be the subject matter of an appeal”.
19. It is the applicant’s primary position that an appeal lies to the Court of Appeal as of right under section 12(1) of the Court’s Act, against this Court’s order of the 5^th April 2024 dismissing his application to discharge the Restraint Order, as the order is a final and not an interlocutory order. Leave to appeal is therefore not required. It is submitted that consistent with that position a Notice of Appeal was filed in April 2024, but that nevertheless the present motion for leave to appeal was made pursuant to section 12(2)(b) of the Courts Act, “to preserve the applicant’s position if (and only if) the Court of Appeal does not accept that an appeal lies as of right”. The applicant submits that it is his alternative position that an appeal lies with the leave of the Supreme Court under section 12(2)(b) of the Courts Act. It would seem that the applicant is unsure as to whether appeal against the decision of the 5^th April 2024 to the Court of Appeal lies as of right, or leave to appeal against that decision is required, and by making the present application in addition to initiating proceedings before the Court of Appeal, appears to be covering all bases.
20. Despite the ACCS’ submission that the present application for leave to appeal is otiose, given that the applicant has already initiated proceedings before the Court of Appeal (on the basis that an appeal from this court’s refusal to discharge the Restraint Order lies as of right under section 12(2) of the Courts Act), given that the issue of whether a Restraint Order granted under the AMLA is civil or criminal in nature and consequently whether leave is required to appeal against the refusal to discharge such an order or an appeal lies as of right against such refusal has never been determined by our courts, it is desirable that this issue is dealt with.

Is the decision refusing the Discharge of the Restraint Order Civil or Criminal in Nature

21. The applicant contends that the making and discharge of a Restraint Order is a civil matter as defined by section 12(4) of the Courts Act and not a criminal matter. The ACCS, on the other hand, submits that the Restraint Order in these proceedings is a criminal remedy and the present application consequently governed by section 14 of the Courts Act. It is the ACCS’ position therefore that no appeal lies against the decision sought to be appealed against.
22. In support of his contention that the subject matter of the appeal is a civil matter, the applicant firstly submits that restraint proceedings are concerned with property rights and not criminal liability, in that the Court is not required to make any determination of guilt or innocence, nor do such proceedings give rise to an acquittal or a conviction. Kevin Stephenson, in support of the ACCS’ contention that a Restraint Order is criminal in nature, avers in his affidavit that the Restraint Order is a criminal remedy made under a criminal statute (i.e. the AMLA); that it arises from criminal proceedings (in the present case from CR114/2021); that it carries a sanction of imprisonment for its breach; and “can only be sought and imposed to restrain assets that are reasonably suspected of being proceeds of criminal conduct for the purpose of satisfying a pecuniary penalty order which is a criminal sanction, in the event that such proceeds are so proved to be on conviction following a  criminal trial”. It is submitted by the ACCS that aside from the nature of the proceedings in which the Restraint Orders are made, the features of the Restraint Orders under the AMLA are consistent with them being criminal in nature, as they are orders in personam, require a criminal charge and breach of such Orders is sanctioned by a term of imprisonment. These arguments will be discussed in more detail further in the judgment.
23. Secondly, the applicant submits that the proceedings are procedurally civil in nature, and further that the civil rules of evidence apply and the Pecuniary Penalty Order of which there has to be a reasonable prospect to justify a Restraint Order is measured against the civil and not criminal standard of proof. The ACCS submits that in Hackl v Financial Intelligence Unit (2010) SLR 98 the Constitutional Court found that ex-parte orders are always on a prima facie basis. The balance of probabilities does not arise at that stage. In that case Burhan J, found as follows:

Further section 9(3) of the POCA reads as follows –

 

The standard of proof required to determine any question arising under this Act, other than proceedings for an offence contrary to section 23 shall be that applicable to civil proceedings.

 

Therefore in all inter partes applications under this Act, the required standard of proof would be on a balance of probabilities, which further supports the fact that the proceedings under this Act are essentially intended to be civil in nature and character.

Considering the aforementioned factors, it is clear that the proceedings under the POCA are civil in nature and the proceedings are governed by the civil law in respect of procedure and determination.

 

24. And further -

Firstly, the said application being an exparte application, counsel’s contention that in an exparte application the standard of proof required by an applicant seeking an interim order is on a “balance of probabilities”, cannot be accepted as the question of a “balance of probabilities” does not arise at this stage, as only one party is present and heard in an exparte application and such orders are always made on a prima facie basis.

 

25. In EXP01/2022 this Court also stated the following in regards to the applicable standard of proof in regards to Pecuniary Penalty Orders and Restraint Orders:
    1. 1. 150. … for a pecuniary penalty order to be made, there must be evidence that such person has benefitted from criminal conduct and the Court must be satisfied of the same on a balance of probabilities. In making a Restraint Order, under section 26(1)(b) the Court only needs to be satisfied that a pecuniary penalty order might be made in respect of the criminal conduct in respect of which proceedings are to be instituted. …

 

1. 1. 1. 151. Furthermore given that a pecuniary penalty order is made where a defendant has benefitted from his criminal conduct, it appears that in making a restraint order under section 26(1)(b), the Court would also have to be satisfied that the defendant, has benefitted from his criminal conduct. However the burden of proof is lower than in the case where a Court would be dealing with an application for a pecuniary penalty order as under section 26(1)(b), the court only has to be satisfied that a pecuniary penalty order might be made …

 

26. It would seem therefore that the applicable standard of proof for the making of a Pecuniary Penalty Order is the civil standard that is on a balance of probabilities, but that a lower standard of proof is required for the making of a Restraint Order. The ACCS submits that the application of the “balance of probabilities” test does not automatically render the proceedings civil as such test is not unknown to criminal proceedings and there are plenty of examples where the “civil test” applies in criminal matters. That may well be but in my view, in regards to Pecuniary Penalty Orders it points to the decision sought to be appealed against being civil in nature.
27. The applicant also avers that if the proceedings were criminal the affidavit in support of the application for the Restraint Order would be inadmissible as hearsay and the application fail. In response the ACCS submits that while section 3 of the POCA provides for evidence to be provided by affidavit or orally from the Director or Deputy Director of the FIU, the AMLA is silent on the matter simply requiring the Court to be “satisfied”. It is submitted that the test is not dissimilar to the test applied in bail applications where hearsay evidence would be admissible. In my view, whether the application for a Restraint Order would fail for that reason is debatable.
28. Thirdly, it is submitted by the applicant that the ACCS has cited no authority for its contention that the restraint order in these proceedings is a criminal remedy. The applicant on the other hand relies on Re O and Another [1991] 2QB 520 (“Re O and Another”) and Government of the United States of America v Montgomery & another [2001] 1WLR 196 (“Montgomery”), which he states are authorities showing that “restraint proceedings are not a criminal matter but are instead civil in character”.
29. Both the cases of Re O and Another (supra) and Montgomery (supra) deal with matters arising from Restraint Orders made by the High Court pursuant to section 77 of the Criminal Justice Act, 1988. In Re O and Another (supra) the High Court made a Restraint Order in respect of the assets held by the applicants who were subsequently charged with offences including theft (under the Theft Act 1968) and conspiracy (under the Criminal Law Act 1977). The applicants made an application for a variation of the Restraint Order, which gave rise to an order for each of them to swear an affidavit disclosing detailed information in respect of their assets. The question arose as to whether the right to appeal against the disclosure order was excluded by section 18(1)(a) of the Supreme Court Act 1981, which provides that: “No appeal shall lie to the Court of Appeal … from any judgment of the High Court in any criminal cause or matter”. The Court of Appeal concluded that the disclosure order was not made in a criminal cause or matter and accordingly it had jurisdiction to entertain the appeal. In giving reasons for such conclusion Lord Donaldson of Lymington M.R. stated:

... Essentially the issue in such cases as this is whether the order sought to be appealed was a judgment in a criminal cause or matter or merely a judgment collateral to a criminal cause or matter. If it is in the former category [judgment in a criminal cause or matter], the court has no jurisdiction. If it is in the latter category [judgment collateral to a criminal cause or matter], there is jurisdiction. 

 

30. He went on to illustrate the dividing line between a judgment in and a judgment collateral to a criminal cause or matter, by comparing the cases of Bonalumi v. Secretary of State for the Home Department (1985) 1 Q.B. 675 and Gooch v. Ewing (1986) 1 Q.B. 791. In Bonalumi (supra) the High Court made an order under the Bankers Books Evidence Act 1879, for the Guildhall Justices to take and transmit evidence to the Secretary of State for transmission by him to a Swedish court in criminal proceedings.  The Court of Appeal held that the Guildhall Justices were exercising a criminal jurisdiction a6nd that the order being designed to produce evidence in criminal proceedings, was an order made in a criminal cause or matter. Consistently with this decision the Court of Appeal in Carr v. Atkins (1987) Q.B. 963 held that an order for the production of evidence under the Police and Criminal Evidence Act, 1984, was an order made in a criminal cause or matter. On the other hand, in Gooch v. Ewing (supra) the clerk to the magistrates' court obtained a garnishee order nisi from the High Court in order to enforce the payment of a compensation order made in criminal proceedings. The Court of Appeal held that section 87 of the Magistrates' Courts Act, 1980, invoked a civil enforcement procedure at the conclusion of the criminal proceedings and that the order was not therefore made in a criminal cause or matter.
31. Lord Donaldson proceeded to point out that –

      The outstanding feature of the legislation [Act of 1988] is the clear dichotomy made between sections 71 to 75, which confer jurisdiction upon the Crown Court and magistrates’ courts to make confiscation orders in criminal proceedings and provide for enforcement procedures thereafter and sections 76 to 82 which confer jurisdiction on the High Court to make restraint and charging orders designed to preserve assets upon which the orders of the criminal courts may bite at a later stage. In Gooch v Ewing [1986] Q.B. 791 it was the magistrates’ court which, having concluded criminal proceedings, embarked by the agency of its clerk on seeking a remedy which was civil in character. In the present appeal the division is clearer, because the Court concerned in criminal matters is not involved at all. It is the Crown Prosecution Service which applies for the restraint order. In my judgment the regime provided by sections 76 to 82 is wholly collateral to the criminal regime provided by sections 71 to 75 and is civil in character … Emphasis added.

 

32. In Montgomery (supra) the High Court made Restraining Orders under section 77 of the Criminal Justice Act, 1988 restraining the appellants from disposing of various assets and requiring the disclosure of financial information. The orders were made in aid of confiscation orders which had been made by a United States Court against the appellants following the conviction of one of them, the power to make such restraint orders being conferred on the High Court by the Criminal Justice Act 1988 (Designated Countries and Territories) Order (SI 1991/2873) (“the DCO”) as amended. The Restraining Orders were subsequently discharged on the application of the appellants, and the Government of the United States appealed to the Court of Appeal where the appellants raised the preliminary objection that the court had no jurisdiction to hear the appeal (against the discharge of the Restraint Orders) as that jurisdiction was excluded by section 18(1)(a) of the Supreme Court Act 1981 which provides that “no appeal shall lie to the Court of Appeal … from any judgment of the High Court in any criminal cause or matter.” The Court of Appeal (Stuart-Smith, Aldous and Swinton Thomas LJJ) [1999] 1 All ER 84 overruled the objection holding that enforcement proceedings under the DCO were civil in nature and that a restraint order was not a judgment in a criminal cause or matter. It heard the appeal, allowed it and reinstated the restraint orders. The appellants appealed against this decision to the House of Lords. Lord Hoffmann proceeded to set out the applicable provisions granting jurisdiction to the Court of Appeal in such matters as follows:
    1. 1. 12. The jurisdiction to make a restraint order under section 77 of the 1988 Act (whether in aid of a domestic or external confiscation order) is conferred upon the High Court. In general, appeals from the High Court lie to the Court of Appeal. Section 16 of the Supreme Court Act 1981 provides that "subject as otherwise provided by this or any other Act . . . the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court." The only provision relied upon as excluding this jurisdiction is section 18(1)(a), which excludes appeals "from any judgment of the High Court in any criminal cause or matter."

 

33. In regards to the argument that the Court of Appeal had no jurisdiction to hear the appeal, Mr Mitchell QC, appearing for the US Government, submitted that restraint orders are made in civil proceedings, even though they are made in anticipation of or consequential upon confiscation orders made in criminal proceedings. Mr Alun Jones QC, representing the appellants, argued that this gave too narrow a construction to the phrase “in a criminal cause or matter”. After carrying out a review of the authorities on the subject (Amand v Home Secretary and Minister of Defence of Royal Netherland Government [1943] AC 147 (an order refusing a writ of habeas corpus to a person who had been arrested with a view to handing him over to a foreign power for trial on a charge of desertion was held to have been made in a criminal cause or matter), R v Southampton Justices, Ex parte Green [1976] QB 11 (an order estreating the recognizance of a surety for an accused who failed to answer bail was held to be in a criminal cause or matter, R v Steel 2 QBD 37 (an order for the taxation of the defendant’s costs in a failed prosecution for criminal libel was held to be in a criminal cause or matter), Lord Hoffmann cautioned against “trying to formulate any definition of "criminal cause or matter" to supplement the undefined expression used by Parliament”. He went on to say that while most cases on the subject concern orders made with a view to a criminal prosecution (Extradition order - R v Governor of Brixton Prison, Ex parte Levin [1997] AC 741; Order for issue of witness summons - Day v Grant [1987] QB 972); Order for production of documents - Carr v Atkins [1987] QB 963) or decisions of superior courts arising from appeals from or judicial review of orders in criminal proceedings, and present little difficulty, the present case concerned the enforcement of an order made in criminal proceedings. He stated that whilst it may be right, and possibly in most cases would be right, to regard orders made by way of enforcement of orders made or to be made in criminal proceedings as part and parcel of those proceedings, as was the case in R v Steel (supra),  he would not accept what he regarded as “the extreme proposition of Mr Alun Jones that the nature of the proceedings in which the original order was made will necessarily determine whether the machinery of enforcement through the courts is a criminal cause or matter”. Importantly, in that regard, he proceeded to explain that:

15. … Modern legislation, of which Part VI of the 1988 Act is a good example, confers powers upon criminal courts to make orders which may affect rights of property, create civil debts or disqualify people from pursuing occupations or holding office. Such orders may affect the property or obligations not only of the person against whom they are made but of third parties as well. Thus the consequences of an order in criminal proceedings may be a claim or dispute which is essentially civil in character. There is no reason why the nature of the order which gave rise to the claim or dispute should necessarily determine the nature of the proceedings in which the claim is enforced or the dispute determined.

 

34. This deals with the ACCS’ contention that the Restraint Order is a criminal remedy as it arose from criminal proceedings namely CR114/2021. Lord Hoffmann went on to point out that:

16. A striking feature of the provisions of section 77 and the following sections of the 1988 Act is that the powers which they create are not given to the Crown Court or magistrates' court which made the confiscation order but to the High Court. Furthermore, those powers either mirror or are expressly by reference to the jurisdiction of the High Court in civil proceedings for the recovery of debts or the determination of proprietary disputes. The restraint order under section 77 is no more than a specialised form of the freezing order used in ordinary civil proceedings. The Act likewise applies the civil procedures for execution by charging orders over property and the appointment of receivers.

 

17. Furthermore, under Part VI, a confiscation order is enforceable against "realisable property", which is defined to include property in which the defendant has any interest (see sections 74(1)(a) and 102(7)). It will therefore include property held by a nominee on trust for the defendant. It will also include property held beneficially by a person to whom the defendant has made a gift caught by the Act: see sections 74(1)(b) and (10) … But such provisions obviously give rise to the possibility of proprietary disputes involving third parties. The Act contains provisions for giving notice by registration under the Land Charges Act 1972 or the Land Registration Act 1925 and for the resolution of third party claims as well as the determination of priorities in bankruptcy or winding-up.

 

35. On the basis of the above Lord Hoffmann, found that:

18. … the jurisdiction conferred upon the High Court under Part VI is a civil jurisdiction, notwithstanding that that jurisdiction exists to enforce or determine disputes over the debts or proprietary rights created or consequent upon a confiscation order made by a criminal court. This was the view of the Court of Appeal in In re O (Restraint Order: Disclosure of Assets) [1991] 2 QB 521. If that is correct, then the same must be true of the use of the provisions of Part VI which the DCO applies to external confiscation orders. Mr Alun Jones accepted that his submission that the criminal nature of the proceedings in Florida was determinative of whether the restraint order had been made in a criminal cause or matter was inconsistent with In re O (Restraint Order: Disclosure of Assets) [1991] 2 QB 521. He submitted that it was wrongly decided. But for the reasons I have given, I respectfully think that it was right.

 

36. He further added:

19. … it seems to me very improbable that Parliament intended that there should be no right of appeal from orders made in the High Court under Part VI. Mr Alun Jones said that restraint orders were merely interlocutory and that Parliament might well have regarded a right of appeal as unnecessary. But there is no general rule that interlocutory decisions are not subject to appeal (apart from rulings in the course of a criminal trial, which involve special policy considerations) and orders under Part VI may have important consequences for the prosecution, the defendant and third parties. It seems clear to me that Parliament made no special provision for appeals because it considered that there was an appeal under the general jurisdiction of the Court of Appeal to hear appeals from the High Court. Of course Parliament may have been under a misapprehension, but this conclusion would produce such an unfortunate result that I would not accept it unless I felt compelled to do so. Emphasis added.

 

37. In its submissions the ACCS emphasised that the Criminal Justice Act 1988 separated restraint powers (and civil recovery powers in sections 77-78) from powers of confiscation, and granted the High Court essentially a court of civil jurisdiction the power to make restraint orders and all ancillary orders relating to them, whereas the confiscation of assets the benefit of criminal conduct following conviction was the province of the crown court which holds criminal jurisdiction.  The ACCS submitted that this bifurcation appears to have been important in the determination that the restraint and recovery powers were civil in nature in Re O and Another (supra) and Montgomery (supra), and further that the lack of involvement by the criminal courts in the restraint process under the Criminal Justice Act 1988, made the identification of the restraint and recovery powers as being civil in nature clearer. In that regard it relied on the following per Lord Donaldson in Re O and Another (supra):

“[t]he outstanding feature of the legislation [Act of 1988] is the clear dichotomy made between sections 71 to 75, which confer jurisdiction upon the Crown Court and magistrates’ courts to make confiscation orders in criminal proceedings and provide for enforcement procedures thereafter and sections 76 to 82 which confer jurisdiction on the High Court to make restraint and charging orders designed to preserve assets upon which the orders of the criminal courts may bite at a later stage.”,

 

and the following per Lord Hoffmann in Montgomery (supra):

“A striking feature of the provisions of section 77 and the following sections of the 1988 Act is that the powers which they create are not given to the Crown Court or magistrates' court which made the confiscation order but to the High Court. Furthermore, those powers either mirror or are expressly by reference to the jurisdiction of the High Court in civil proceedings for the recovery of debts or the determination of proprietary disputes. The restraint order under section 77 is no more than a specialized form of the freezing order used in ordinary civil proceedings”.

 

38. The ACCS submits that the situation has changed in England and Wales where, as of 24^th February 2003, criminal and civil asset recovery powers fall under the Proceeds of Crime Act 2002 and have become the sole jurisdiction of the criminal courts. A distinction is made between criminal asset recovery powers that are part of criminal investigations and criminal proceedings under Part 2 of the Act which include restraint orders and confiscation, and civil powers (also referred to as non-conviction asset recovery powers) contained in Parts 5 and 6. The ACCS points out that significantly, section 43 of that Act provides a statutory route of appeal against the refusal to make an order restraining assets and/or the refusal to vary or discharge the order.
39. The ACCS further submits that although UK legislation and their interpretation may offer some assistance, the context of such legislation is important particularly where it is not mirrored in our legislation. It is submitted that it is not a simple matter of applying the legislation in this jurisdiction and they are not determinative. Whilst I agree with this to a certain extent, I am of the view that the cases of Re O and Another and Montgomery may provide useful guidance in determining whether the restraint provisions in the AMLA are civil or criminal in nature. It is to be noted that there are certain similarities in the legislation referred to in these cases and our own.
40. First it is important to note that the starting point in Re O and Another, was to determine whether “the order sought to be appealed was a judgment in a criminal cause or matter or merely a judgment collateral to a criminal cause or matter” which would in turn determine whether the appellate court had jurisdiction or not. Matters such as the exercise of restraint powers by the courts of civil jurisdiction (the High Court) and the exercise of powers to make and enforce confiscation orders by courts of criminal jurisdiction (the Crown Court and Magistrates’ Court) in criminal proceedings, were taken in consideration in these cases, amongst other things, in order to make such determination.
41. In the present case the Restraint Order was made pursuant to sections 26(1)(b) and 27 which fall under Part 4 of the AMLA titled “RESTRAINT, SEIZURE AND FORFEITURE OF PROPERTY”). Section 26 sets out the circumstances in which the Supreme Court may make a Restraint Order essentially giving jurisdiction to that Court to make a Restraint Order in those circumstances. These are where “proceedings have been instituted in the Republic against the defendant for criminal conduct or an application has been made in respect of the defendant under section 41 (Making of Pecuniary Penalty Order where new evidence becomes available) or section 42 (Further determination possibly leading to increased Pecuniary Penalty Order)  of [the AMLA]” (section 26(1)(a)) and where the court “is satisfied that proceedings are to be instituted against a person for criminal conduct in respect of which a pecuniary penalty order might be made under Part 5 of this Act” (section 26(1)(b)). Section 27 contains provisions relating to the Restraint Order itself, including what the Restraint Order can provide for (i.e. prohibition from dealing with realisable property), the conditions and exceptions to which such Restraint Order may be subject (i.e. living and legal expenses), the procedure for making an application for a Restraint Order, the discharge or variation of a Restraint Order, and receivership and seizure of property subject to a Restraint Order.
42. Pecuniary Penalty Orders are provided for under Part 5 of the AMLA, in sections 38 to 45G. A pecuniary penalty order may be made “by a court” upon application, after a person has been convicted and sentenced or otherwise dealt with in respect of criminal conduct, to recover any benefits of such criminal conduct. The purpose of a restraint order is to ensure that property which is the benefit of criminal conduct is not dissipated, so that in the event of a conviction an eventual pecuniary penalty order may be satisfied.
43. The Restraint Order was granted by this Court in EXP 01/2022 on 31^st March 2023, upon “being satisfied, in terms of section 26(1)(b) of the AMLA 2006 as amended, that proceedings are to be instituted against Mukesh Valabhji for criminal conduct contrary to the same Act, in respect of which a pecuniary penalty order might be made under Part 5 of that Act”. The criminal conduct for which proceedings were to be instituted against the applicant is Money Laundering contrary to section 3(1)(c) of the AMLA.
44. As stated, the ACCS has submitted that in Re O and Another and Montgomery, the (civil) jurisdiction of the High Court which made the Restraint Orders from which the orders appealed arose, as opposed to the criminal jurisdiction of the Crown Court and Magistrates’ Court which made confiscation orders designed “to bite on” the assets preserved by the Restraint Orders, conferred by the Criminal Justice Act 1988, was relied upon to come to a finding that the orders sought to be appealed were civil in nature. In our jurisdiction, by virtue of Article 125(1)(b) of the Constitution, the Supreme Court has original jurisdiction in both civil and criminal matters. In the AMLA Restraint Orders are provided for in Part 4 whereas Pecuniary Penalty Orders which are comparable to the confiscation orders in the UK fall under Part 5, thereby effectively separating these two powers. Section 26 of the AMLA 2006 as amended confers jurisdiction to make Restraint Orders on “the Court” which is defined in section 2 of that Act as “the Supreme Court of Seychelles save otherwise where the context requires” but does not specify if the power to make Restraint Orders is in the exercise of the Supreme Court’s civil or criminal jurisdiction. In contrast it is clear from the wording of section 38 of the AMLA that a Pecuniary Penalty Order is made by the court convicting and sentencing the person for criminal conduct from which such person has benefitted which would necessarily be a criminal court. While this could be interpreted as being indicative that Restraint Orders are made by the Supreme Court in the exercise of its civil jurisdiction, it does not establish the same with any certainty.
45. However, in both Montgomery and Re O and Another, one of the determining factors which led the Court to consider the restraint powers under the Criminal Justice Act 1988 as civil is that that they were an enforcement procedure albeit invoked at the conclusion of criminal proceedings (see also Gooch v Ewing (supra)). 
46. In Montgomery, in concluding that “the jurisdiction conferred upon the High Court under Part VI is a civil jurisdiction, notwithstanding that that jurisdiction exists to enforce or determine disputes over the debts or proprietary rights created or consequent upon a confiscation order made by a criminal court” Lord Hoffmann, also took into account that the restraint powers under section 77 and the following sections of the Criminal Justice Act 1988 “either mirror or are expressly by reference to the jurisdiction of the High Court in civil proceedings for the recovery of debts or the determination of proprietary disputes” and that “[t]he restraint order under section 77 is no more than a specialized form of the freezing order used in ordinary civil proceedings.” This brings to mind the provisions of the Proceeds of Crime (Civil Confiscation) Act, (Act 19 of 2008) (“POCA”) as well as the provisions of the Seychelles Code of Civil Procedure, Cap 213 with respect to provisional seizure and attachment (section 280 & 281) and injunctive remedies which serve to preserve the status quo pending civil litigation.
47. In Hackl v Financial Intelligence Unit (2010) SLR 98 Interim Orders had been made under the POCA on the application of the Financial Intelligence Unit, restricting the disposal of or other dealings with several parcels of land, the sale of or dealings with certain vessels and vehicles and restraining funds in bank accounts of the petitioner. The petitioner challenged the constitutionality of inter alia section 3(1) of the POCA under which the Interim Orders were made as contravening the right to property in Article 26(1) of the Constitution. The then Chief Justice Egonda Ntende found that “restriction of disposal [of property] is without doubt an interference with the right of ownership of property under Article 26(1) of the Constitution” but went on to consider whether the restriction under section 3(1) of the POCA is a permitted derogation under Article 26(2) of the Constitution, in particular Article 26(2)(a) and (d) which permit restrictions to such right where it is in the “public interest” and the property is “reasonably suspected of being acquired by the proceeds of drug trafficking or serious crime”. The petitioner contended that section 3(1) of the POCA did not fall within those derogations, as the definitions of property that forms “benefit from criminal conduct” and “criminal conduct” under sections 2 of the POCA and 3(9)(c) of the AMLA includes criminal conduct which is not a crime in Seychelles committed outside of Seychelles. The constitutionality of these provisions was also challenged on “the fact that the benefit of crime includes property obtained before the passing of the POCA or the AMLA specifically as a penal statute that is retrospective contrary to Article 19(4) of the Constitution”. On the latter point the then Chief Justice stated that:

As noted above, the POCA is not a penal statute. It does not possess the commonly known aspects of criminal legislation. No offence is created. No one is charged with an offence. No one is tried for any offence. Its thrust is to deprive ownership, possession, and control of property derived from criminal conduct from those that hold that property in the manner described at the time of initiating proceedings under the POCA. To that extent it is not retrospective at all. It speaks to the present not to the past. Property acquired from criminal conduct is not constitutionally protected. Article 19(4) of the Constitution is not contravened in any way by the provisions impugned.

 

Orders under section 3 of the POCA are of temporary and limited duration, intended only to preserve the property in question pending further proceedings between the parties when all the parties to the proceedings will be given an opportunity to press their cases before the court before a final decision is made. As noted above, proceedings of such a nature are not alien to the civil procedure in Seychelles and are employed often to preserve either the subject matter in dispute or assure a party of an ability to satisfy its anticipated judgment (see sections 280 and 281 of the Seychelles Code of Civil Procedure).

Emphasis added.

 

48. The ACCS rely on the above statements of the then CJ Egonda Ntende that “the POCA is not a penal statute. It does not possess the commonly known aspects of criminal legislation. No offence is created. No one is charged with an offence. No one is tried for any offence”, to support their contention that the Restraint provisions in the AMLA is criminal in nature. Admittedly the AMLA creates the offence of money-laundering and provides a punishment for the commission of such offence (section 3). The breach of a Restraint Order is also an offence carrying a sanction of a fine or imprisonment or both (section 32 AMLA). However it is my view that proceedings under Part 4 of the AMLA which give rise to Restraint Orders are civil in nature as such orders have much the same purpose as the Interim Orders made under the POCA which is to preserve property and ensure that it is not dissipated pending conclusion of related proceedings.  The then CJ Egonda Ntende explained this as follows in respect of Interim Orders under the POCA:

The restriction against disposal of specified property, at the commencement of proceedings that will determine, whether such property is the benefit from criminal conduct, is necessary in order not to render those proceedings nugatory. If no restraint was imposed on the current holder of such property, it could be possible to dispose of the property, as soon as one got wind of the commencement of such proceedings.

 

49. Similarly to proceedings under the POCA, in the words of then CJ Egonda Ntende, the thrust of the restraint provisions in the AMLA, “is to deprive ownership, possession, and control of property derived from criminal conduct from those that hold that property in the manner described at the time of initiating proceedings … Orders under section 3 of the POCA are … intended only to preserve the property in question pending further proceedings between the parties when all the parties to the proceedings will be given an opportunity to press their cases before the court before a final decision is made.”
50. The Court of Appeal dismissed Hackl’s appeal against the decision of the Constitutional Court dismissing his petition (Hackl v Financial Intelligence Unit (2012) SLR 225). On Appeal Twomey JA stated that “As we have pointed out recently (Financial Intelligence Unit v Mares Corp SCA 48/2011) the POCCCA sits uncomfortably between civil and criminal law and while it deals with the proceeds of criminal conduct its provisions are essentially civil in nature”. In my view the restraint provisions in the AMLA are in a similar position. Although the AMLA provides for the offence of money laundering and makes the breach of a Restraint Order an offence and provides a sanction for such offences, the proceedings in Part 4 are civil proceedings. As aptly observed by Twomey JA: “[t]he laws of civil forfeiture are modern and may well introduce novel concepts that are alien to the classic understanding that there are boundaries between criminal and civil law …”
51. In support of its contention that Restraint proceedings are criminal in nature, the ACCS also makes the point that Restraint Orders are orders in personam as opposed to the in rem nature of orders made pursuant to civil forfeiture statutes such as the POCA. It relies on the following finding of the Constitutional Court of South Africa in Simon Prophet v National Director of Public of Public Prosecutions CCT 56/05 which then CJ Egonda Ntende in the Constitutional Court case of Hackl relied upon to make a finding that “the proceedings under the POCA are civil in nature”.
    1. 1. 58. Civil forfeiture provides a unique remedy used as a measure to combat organised crime. It rests on the legal fiction that the property and not the owner has contravened the law. It does not require a conviction or even a criminal charge against the owner. This kind of forfeiture is in theory seen as remedial and not punitive ... Emphasis is mine.

 

52. The ACCS also relied on Murphy v M (G) [2001] IESC 82 at para 125, which was considered by Burhan J in the same case, and in which Keane CJ of the Supreme Court of Ireland held that:

The court is satisfied that the United States authorities lend considerable weight to the view that in rem proceedings for the forfeiture of property, even where accompanied by parallel procedures for the prosecution of criminal offences arising out of the same events, are civil in character and that this principle is deeply rooted in the Anglo-American legal system [emphasis added].

 

53. The ACCS also submit the distinction between in rem and in personam was re-affirmed by the Court of Appeal in Hackl. This arose pursuant to the appellant’s argument that since he has already been penalised for the offence in Germany (he has been convicted and is serving a six years sentence in Germany in relation to the exportation of heavy graphite to Iran), he cannot again be penalised in Seychelles, which is contrary to Article 19(5) of the Constitution. Twomey JA stated:

In United States v Ursery (95-345) 518 US 267 (1996) the Supreme Court of the United States of America after reviewing a long list of similar precedents found that in contrast to the in personam nature of criminal actions, in rem forfeitures are neither "punishment" nor criminal for purposes of the double jeopardy clause of the American Constitution. In the case of Bennis v Michigan (94-8729) 517 U.S. 1163 (1996) the forfeiture was found constitutionally permissible even in the case of a joint owner of property as the court found that –

 

historically, consideration was not given to the innocence of an owner because the property subject to forfeiture was the evil sought to be remedied.

 

Similarly in the South African case of Simon Prophet v National Director of Public Prosecutions CCT 56/05 the Constitutional Court in effect traces the origins of modern forfeiture laws to the common law of the deodand (the guilt of inanimate objects) of the Middle Ages:

 

Civil forfeiture provides a unique remedy used as a measure to combat organised crime. It rests on the legal fiction that the property and not the owner has contravened the law. It does not require a conviction or even a criminal charge against the owner.

 

In Gilligan v Criminal Assets Bureau and Others and Murphy v GM, PB and Ors [2001] IESC 82 the Supreme Court of Ireland found:

 

The court is satisfied that the United States authorities lend considerable weight to the view that in rem proceedings for the forfeiture of property, even when accompanied by parallel procedures for the prosecution of criminal offences arising out of the same events are civil in nature and that this principle is deeply rooted in the Anglo-American legal system.

 

54. Twomey JA concluded as follows:

In the instant there has been no indictment or conviction of the appellant on any criminal offence in Seychelles. The forfeiture of several properties both immoveable and moveable in Seychelles belonging to the appellant is a civil matter. As we have pointed out recently (Financial Intelligence Unit v Mares Corp SCA 48/2011) POCCCA sits uncomfortably between civil and criminal law and while it deals with the proceeds of criminal conduct its provisions are essentially civil in nature. As such they do not attract the protection of article 19(5) of the Constitution.

 

55. One of the characteristics of in personam remedies or orders is that they are punitive and act as a sanction or a deterrent rather than being reparatory or compensatory as is the case of in rem remedies. Restraint Orders are made for preservation of realisable property of a defendant to prevent dissipation of such property with a view to satisfying an eventual Pecuniary Penalty Order. In support of the ACCS’ stand that restraint proceedings are criminal in nature, Mr Stephenson has averred in his affidavit that a Restraint Order can only be sought and imposed to restrain assets that are reasonably suspected of being the benefit of criminal conduct for the purpose of satisfying a Pecuniary Penalty Order, which is a criminal sanction, if the assets are proved on conviction to be the benefit of criminal conduct. In my view a distinction has to be made between the restraint proceedings which cannot be said to be punitive or to be a sanction for criminal conduct and Pecuniary Penalty Orders which are made after conviction if the person convicted is found to have benefited from criminal conduct. It is noteworthy that the Court of Appeal in the case of Hackl, in relation to the POCA, held that although the POCA deals with proceeds of criminal conduct, its provisions are civil in nature. In my view, for the reasons given above, the same applies to the restraint proceedings under AMLA, notwithstanding that property subject to a Restraint Order may be used to recover the sum under a Pecuniary Penalty Order. The Court of Appeal in Hackl, in regards to the appellant’s argument that Seychelles is the only country in which the definition of criminal conduct has been expanded to include offences committed outside the state which are themselves not criminal offences in Seychelles, stated: “[i]n any case the appellant’s argument also misses the point that it is not the criminal offence which is being targeted by POCCCA or AMLA. True there is an undeniable connection between the “criminal conduct” as defined, but it is the assets derived from any such conduct that is being aimed at ...”
56. It is also noteworthy that in Hackl (supra) similarities between the restraint provisions in the POCA and the mechanisms used in civil procedure “to preserve the subject matter in dispute or assure a party of an ability to satisfy its anticipated judgment” was noted, while in Montgomery the Court observed the similarities between  the restraint powers under the Criminal Justice Act 1988 and the jurisdiction of the High Court in civil proceedings for the recovery of debts or the determination of proprietary disputes” and described the Restraint Order under section 77 as “no more than a specialized form of the freezing order used in ordinary civil proceedings”. This points towards the restraint provisions in the AMLA being civil in nature.
57. In that regard, in Montgomery (supra) Lord Hoffmann observed that the Criminal Justice Act 1988 “applies the civil procedures for execution by charging orders over property and the appointment of receivers.”  It is noteworthy that similarly, Part 4 of the AMLA in section 27(7) also empowers the Court, where it has made a Restraint Order, to appoint a receiver to take possession of any realizable property and to manage or otherwise deal with any property in respect of which the receiver is appointed. Section 28 of the AMLA further provides for notice of a Restraint Order being given to the Registrar General who is under the obligation to enter restrictions in respect of restrained property regulated by any law administered by the Registrar General, such as land registered under the Land Registration Act or falling under the Mortgage and Registration Act, and property of a body corporate incorporated under any law administered by the Registrar General.
58. In coming to the conclusion that “the jurisdiction conferred upon the High Court under Part VI [of the Criminal Justice Act 1988] is a civil jurisdiction”, Lord Hoffmann also took into account that Part VI contained provisions which “give rise to the possibility of proprietary disputes involving third parties”. He pointed out that under Part VI a confiscation order is enforceable against "realisable property", which includes property in which the defendant has any interest and will therefore include property held by a nominee on trust for the defendant, and will also include property held beneficially by a person to whom the defendant has made a gift caught by the Act. Under the AMLA Restraint Orders are also made and Pecuniary Penalty Orders are enforced against "realisable property" (sections 27 and 45E). The word “property” as defined by section 2 is inter alia construed as “including references to any interest in property”. Under the AMLA as under the Criminal Justice Act 1988 therefore, property held by a nominee on trust for the defendant may be subject to Restraint Orders and Pecuniary Penalty Orders/ Confiscation Orders. Under section 29(3) of the AMLA reference is also made to “realizable property held by a person whom the defendant has directly or indirectly made a gift, caught by this Act” in relation to the powers of the receiver appointed where a Restraint Order is made, for the purpose of satisfying a Pecuniary Penalty Order. In that regard, for the purpose of satisfying a Pecuniary Penalty Order, section 45E(6) provides that “[t]he Court may order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, by the recipient of any gift caught by this Act”.  Lord Hoffmann observed that “such provisions obviously give rise to the possibility of proprietary disputes involving third parties”, hence the necessity for a right of appeal against the making or refusal to make a Restraint Order, which would not be possible if it was considered as a criminal power. In that regard, he pointed out that the Criminal Justice Act 1988 contains provisions for giving notice by registration under the Land Charges Act 1972 or the Land Registration Act 1925 and for the resolution of third party claims as well as the determination of priorities in bankruptcy or winding-up. As stated the AMLA also contains provisions for giving notice to third parties where Restraint Orders are made in respect of immovable property by charging such properties. Section 31 also prevents the court and any receiver appointed from exercising their powers under section 27 in relation to realizable property of a company in liquidation so as to prevent the liquidator from distributing any property of the company to the company’s creditors.
59. It is for the above stated reasons, in addition to the conferment of restraint powers on the courts of civil jurisdiction and of the power to make confiscation orders on criminal courts by the Criminal Justice Act 1988,  that Lord Hoffmann found in Montgomery that “the jurisdiction conferred upon the High Court under Part VI is a civil jurisdiction, notwithstanding that that jurisdiction exists to enforce or determine disputes over the debts or proprietary rights created or consequent upon a confiscation order made by a criminal court”, which he further stated was the view of the Court of Appeal in in Re O and Another (supra). For similar reasons therefore, I find that the Order dismissing the application for discharge of the Restraint Order in CM122/2023 was collateral to a criminal cause or matter and not in a criminal cause or matter, such criminal cause or matter being the criminal proceedings brought against the applicant in CR114/2021. Hence, following the reasoning in Re O and Another and Montgomery I further find that in making the Restraint Order in EXP01/2022 and in dismissing the application for its discharge in CM122/2023 this Court was exercising its civil jurisdiction. It is my view therefore that the decision dismissing the discharge application is civil in nature, and consequently section 12 of the Courts Act applies to an appeal against that decision.
60. I am confirmed in my view by the view expressed by Lord Hoffmann’s at paragraph 23 of the judgement in Montgomery, with which I agree, that “it seems to me very improbable that Parliament intended that there should be no right of appeal from orders made in the High Court under Part VI” especially given that “orders under Part VI may have important consequences for the prosecution, the defendant and third parties”. Further that if no such right of appeal existed “this conclusion would produce such an unfortunate result that [he] would not accept it unless [he] felt compelled to do so. In the same vein Lord Hobhouse added at paragraph [39] that “this would be a remarkable state affairs in that it would mean that the civil law property rights of individual citizens could be taken away without any possibility of appealing an adverse decision … The case of O [1991] 2 QB 520 decided that there is a right of appeal and that decision has as a matter of course been followed many times since. It was correctly decided.”
61. The applicant also relies on Valabhji v Anti-Corruption Commission SCA CR MA 06/2023 & SCA CR MA 08/2023 [2023] SCCA 64 (18 December 2023) at para [8] to state that the Court of Appeal has previously recognised that section 12 of the Courts Act provides for a right of appeal against a decision of the Supreme Court restricting the defendant’s assets, and that there is no reason to adopt a different approach in the present case. In that case the applicant (Mukesh Valabhji) was being prosecuted in CR04 of 2022. The Anti-Corruption Commission (“the ACCS”) issued a restriction order in respect of the personal bank accounts of the applicant and those of his wife as well as the accounts of various companies of which the applicant or his wife was the shareholder, director, beneficial owner or signatory. The applicant sought a variation of the restriction Order under section 60(6) of the Anti-Corruption Act to allow for payment of his legal fees as per resolutions of Zil Pasyon Resort Limited and Intelvision Limited – two companies in which he held a beneficial interest, which was dismissed by the Supreme Court in MC82/2022 on 10 February 2023 (the February ruling). On 15 February 2023, the applicant sought leave from the Supreme Court to appeal against the February ruling (dismissing the application for variation order), which the Supreme Court refused by way of Ruling dated 9 June 2023 on the ground that leave was not required for the appeal to proceed. The applicant filed a motion before the Court of Appeal in SCA CR MA06/2023 for “special leave to appeal against an interlocutory ruling delivered by the Supreme Court on 9 June 2023” (dismissing the motion for leave to appeal to the Court of Appeal), which he claimed had been mistakenly filed instead of a motion for leave to appeal outside time against the February ruling. The Court of Appeal found that the February Ruling (dismissing the application for variation order) was not an interlocutory judgment but a final one and stated at paragraph [8]:

8. It cannot be disputed that the impugned February ruling of the Supreme Court is a final decision in so far as the prayer which was being sought in that case, namely a variation of the restriction order issued by the ACC in respect of all the applicant’s bank accounts and those of companies in which he had a beneficial interest. The applicant however sought leave to appeal the February ruling when, pursuant to section 12(2) of the Courts Act, he should have appealed directly to this Court.

 

62. The restriction order in Valabhji v Anti-Corruption Commission SCA CR MA 06/2023 & SCA CR MA 08/2023 [2023] SCCA 64 (18 December 2023) was made pursuant to the provisions of the Anti-Corruption Act as was the application for variation of the said Order by the applicant. It would appear, in view of what was stated by the Court at paragraph 8 of its judgment and its application of section 12(2) of the Courts Act which deals with civil matters, that it considered the matter as a civil matter, although it arose from a criminal matter i.e. CR04 of 2022. I do not find this case helpful on the issue of whether a right of appeal lies against the dismissal of an application to discharge a Restraint Order made under the provisions of the Anti-Money Laundering Act 2006 as amended, as the issue was not discussed in any depth in that case and no reasons given as to why the Court considered the matter a civil one.       It is also relevant that the restriction order was made pursuant to the Anti-Corruption Commission Act while the Restraint Order in the present case was made under the AMLA.
63. In Ernesta & Ors v Republic (SCA 07/2017) Fernando JA in dismissing the appeal held that the Court of Appeal has no jurisdiction to entertain an appeal from an order made by the Supreme Court refusing bail in respect of a case still pending before it. Relying on that case the ACCS submits that if restraint powers are criminal in nature, section 342(6) of the Criminal Procedure code applies and restricts the right of appeal in relation to rulings or directions etc. of the Supreme Court on conviction and sentence. The ACCS has submitted that the following dicta of Fernando JA in that case supports the view that a Restraint Order is a criminal power:

25. It was sought to be argued at the hearing before us (reference is to the hearing in Kenneth Steve Esparon) that orders pertaining to bail do not come within the purview of article 120(2) of the Constitution as bail is so fundamental a right and also a matter that will not attract the application of section 342(6) of the Criminal Procedure Code. The argument was to the effect that an order pertaining to bail has to be looked at differently from other orders made during a criminal trial which would result in stopping a criminal trial midstream. If that be the case ‘prohibition orders’ made under section 31 of the Misuse of Drugs Act and ‘restraint orders’ made under section 26 of the Anti-Money Laundering Act, prohibiting a person charged with an offence under the said Acts from dealing with any realisable property also fall into the category of orders that will not result in stopping a criminal trial midstream. It is to be noted that prohibition and restraint orders necessarily infringe on the fundamental right to be treated with dignity, which is an unqualified right and the right to property which are enshrined not only in the Constitution but set out emphatically in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Emphasis added.

 

64. In my view the point is of no relevance given firstly that the above is only dicta and merely persuasive and secondly that Ernesta was overruled by Valabhji v The Republic (SCA CR08/2022) [2023] SCCA 01 (Arising in CR04/2022) (10 February 2023), which the ACCS submits is not the case, despite the following per Robinson JA, before proceeding to hear and make a determination on the merits of the appeal:

19. We also hold the view that the Court of Appeal has the jurisdiction to hear an appeal against the refusal of bail pending trial before the Supreme Court …

[…]

 

28. Having considered the submissions of Counsel for the Appellant with care, we agree that the “most logical construction” of section 342(6) is that it clarifies subsections (1) and (2), which stipulate that – “a person who has been either convicted, or committed for sentence, “may” appeal in the particular circumstances set out”. As submitted by Counsel for the Appellant – “clear exclusionary words would be needed to restrict the generality of Article 120(1) and/or 120(2)”.

 

29. Hence we do not endorse the observation of Fernando, the then JA, in Esparon and others (at paragraph 25” that – “[…] the drafters of the Constitution has decided to give a free hand to the Legislature in whom the legislative power of Seychelles is vested to exclude without qualification, any “decisions” or “orders” of the Supreme Court from the purview of appealable orders.

 

65. In support of its argument that Restraint Orders are not appealable on the basis that they are criminal in nature, the ACCS further submitted that in contrast to bail - which was what was addressed in Valabhji v The Republic (supra) - restraint provisions expressly provide for anyone affected to apply for its variation or discharge which application may be made throughout the lifetime of the restraint order. In my view, especially given that a Restraint Order may be made ex-parte, a variation or discharge of the order is necessary to allow an aggrieved person to come back to the same court and ask that court to review its decision based on matters which the party (not being present) could not bring to the courts attention when the order was made, much as in the case of exparte injunctions. Furthermore orders for variation or discharge may also be applied for by third parties affected. In my view such persons must have some recourse before the conclusion of the criminal proceedings against them to be able to appeal against a decision refusing the variation or discharge.
66. I also find no merit in the ACCS’ argument that the reasoning in Ernesta still stands since Rule 18(2) of the Court of Appeal Rules which came into effect after the Valabhji case on bail, has not adopted the reasoning of the Court of appeal in that case that it has jurisdiction to hear appeals beyond that allowed in Aricle 120(2) of the Constitution read with section 342(6) of the Criminal Procedure Code.
67. In my view, all the above-mentioned matters confirm the civil nature of the decision dismissing the discharge application, and I so find.

Is the decision refusing the Discharge of the Restraint Order an Interlocutory or Final Order

68. In view of my finding that the order dismissing the application for the discharge of the Restraint Order is civil in nature, I now have to consider whether the order is a final order or an interlocutory one.
69. Although by making the present application for leave to appeal, the applicant appears to concede that the Restraint Order is an interlocutory order, he submits that the order is a final order and consequently an appeal lies as of right to the Court of Appeal and leave to appeal is therefore not required. He argues that this is because the restraint proceedings are not a subset or intermediary process within the criminal prosecution, and points out that no substantive aspect of the criminal proceedings brought by the respondent against the applicant in CR114 of 2022 is in any way affected by the outcome of the restraint proceedings, but that the two sets of proceedings run in parallel. He makes a distinction between decisions made in restraint proceedings and those made for amendment of charges which he states is made as a part of ongoing criminal proceedings. In support of his argument he relies on the definition of a final ruling in Valabhji v Anti-Corruption Commission [2023] SCCA 64 (summarised at para [54] hereof) at para [7], namely one which “finally disposes of the matter in litigation or the rights of the parties”, to conclude that the impugned order in the present case is unquestionably a final order in that it finally disposed of the matter in litigation which he states is the Restraint Order’s compliance with section 26(3) of the 2006 Act.
70. The ACCS on the other hand submits that if the Court finds that Restraint Orders are civil in nature, sections 4 and 5 of POCA describe an Interlocutory Order as one in force until the final disposal of the matter. I do not find this definition helpful in terms of determining whether a Restraint Order under the AMLA is interlocutory or final for the purposes of an appeal. It is further submitted that in Montgomery and Re O and Another (supra) Restraint Orders were expressly described as interlocutory, with Lord Hoffman rejecting that their temporary nature explained the absence of a right of appeal. A reading of paragraph 23 of the judgment in Montgomery shows that Lord Hoffman was rather considering Counsel for the appellants Alun Jones’ argument that restraint orders were merely interlocutory hence the absence of a right of appeal, and not so much holding that Restraint Orders are interlocutory. In Re O and Another the order appealed against which was described as interlocutory in character was a Disclosure Order and not a Restraint Order. The ACCS provides no other explanation as to why the order sought to be appealed should be considered as interlocutory.
71. I am inclined to agree with the applicant, in light of what was stated at para 8 of Valabhji v Anti-Corruption Commission [2023] SCCA 64, that: “[i]t cannot be disputed that the impugned February ruling of the Supreme Court is a final decision in so far as the prayer being sought in that case, namely a variation of the restriction order issued by the ACC in respect of all the applicant’s bank accounts and those of companies in which he had a beneficial interest.” The decision sought to be appealed in this case was a dismissal of the application for variation of the restriction order.
72. Similarly, in the present case, it is clear in so far as the remedy being sought in CM122/2023 namely the discharge of the Restraint Order, that the decision of this Court dismissing the application for such discharge is a final and not an interlocutory order. In terms of section 12(1) of the Courts Act therefore, an appeal lies as of right to the Court of Appeal and no leave to appeal is required. Accordingly, I find that there is no requirement for leave to appeal against the decision of 5^th April 2024 in CM122/2023.
73. Having found that the order sought to be appealed against is a final order, I find no necessity to consider whether the appeal raises questions which ought to be the subject matter of an appeal, which would have been necessary if this Court had found that the order is an interlocutory order. Suffice it to say that I do not agree with the ACCS’ submission that given that the Restraint Order is being challenged strictly on a procedural point “that turned on construction where there were only two ways to read the statute, and therefore the construction this court has placed upon it was open to it”, which cannot properly be described as an error in law. Errors in statutory construction are errors of law amenable to appeal. I am also of the view that the appeal deals with a novel point of construction that has never been dealt with by the courts, and would benefit from the scrutiny of the Court of Appeal. Given that the order sought to be appealed against was made pursuant to the AMLA 2006, I also do not agree with the ACCS’ view that given that the 7-day time limit no longer applies in Act 5 of 2020, it can only be a matter of historical relevance.

Decision

74. Having found that the Order of 5^th April 2024 in CM122/2023 dismissing the application to discharge the Restraint Order made on 31^st March 2023 in EXP 01/2022 was made in a civil matter and that it was a final order, and that therefore an appeal against such order lies as of right to the Court of Appeal, the application for leave to appeal against the Order of 5^th April 2024 in CM122/2023 is dismissed.

 

Signed, dated, and delivered at Ile du Port on 18 October 2024.

 

 

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Carolus J