Government of Seychelles v Delpeche & Anor (MC 10 of 2024) [2024] SCSC 43 (4 April 2024)

A. MADELEINE, J

The Application

1. This is an application by the Government of Seychelles (hereinafter referred to as the “GOS”) for a Disposal Order pursuant to Section 5 of the Proceeds of Crime (Civil Confiscation) Act, 2008 as amended (hereinafter referred to as the “POCCCA”) for the transfer of the whole of the specified property, namely a sum of SCR102, 000/- held on credit in an FCIU Receivership account with ABSA Bank (Seychelles) Limited, to the Republic.
2. The GOS also seeks an order for service of notice of any orders made in the present application on the Respondents or any other person directed by the Court, and for any such other orders that the Court shall deem fit in the circumstances.
3. The application was served on Dave Delpeche – the 1^st Respondent - and Sharon Marie- the 2^nd Respondent – both of whom appeared in Court in person on 19 March 2024 and stated that they are not contesting the present application.
4. The application of the GOS is supported by the affidavit of Sergeant Dave Jeanne of the Financial Crime Investigation Unit (hereinafter referred to as the “FCIU”) in the Seychelles Police and is grounded on the following facts.
5. On 31^st January 2023, the Supreme Court per Mohan Burhan, J issued an interlocutory Order under Section 4 of the POCCCA prohibiting the Respondents herein from disposing of or otherwise dealing with the whole or any part of the specified property, namely a sum of SCR102,000/- held on credit in an FCIU Receivership account with ABSA Bank (Seychelles) Limited (hereinafter referred to as the “Specified Property”). Thereupon, Inspector Terence Roseline, an officer of the Seychelles Police attached to the FCIU (as he then was) was appointed Receiver of the said specified property pursuant to section 8 of the POCCCA. The Respondents did not contest the Section 4 application and did not appeal the Interlocutory Order made on 31^st January 2023. The Interlocutory Order in relation to the Specified Property has been in force for a period of not less than 12 months and there is no pending appeal or pending applications under Section 4 (3) of the POCCCA in respect of the said Specified Property.

Law and Analysis

6. Section 5 (1) of the POCCCA stipulates as follows –

“5. Disposal order

(1)Subject to subsection (2), where an interlocutory order has been in force for not less than 12 months in relation to specified property and there is no appeal pending before Court in respect of the interlocutory order, the Court, on application to it in that behalf by the applicant, may make a disposal order directing that the whole or a specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to the Republic or to such other person as the Court may determine and such transfer shall confer absolute title free from any claim of any interest therein or encumbrances to the Republic or such person.”

(emphasis added)

7. Subsections (2), (3) and (10) of the POCCCA qualifies the circumstances in which an application may be made and a disposal order is issued — 

“(2)No application may be made by the applicant for a disposal order while —

(a)an application made under section 4(3); or

(b)an appeal against an order made under the application referred to in paragraph (a); or;

(c)an appeal against any order made under section 4,is pending, and so that after such application under section 4 (3) and any appeal shall have been disposed of, the 12 month period shall be calculated from the making of the order under section 4, unless the Court for good cause shall otherwise determine.”

(3)Subject to subsections (8) and (10), the Court shall make a disposal order in relation to any property, the subject of an application under subsection (1) 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.

………………….

(10)The Court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice to any person (the onus of establishing which shall be on that person) and the Court shall not decline to make the order in whole or in part to the extent that there appears to be knowledge or negligence of the person seeking to establish injustice, as to whether the property was as described in section 4(1)(a) when becoming involved with the property”

(Emphasis added)

8. Section 4(3) of the POCCCA allows for applications to be made for the discharge or variation of interlocutory orders where it is shown to the satisfaction of the Court that the property concerned in the order does not constitute, directly or indirectly, benefit from criminal conduct or was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes benefit from criminal conduct. A discharge or variation may be sought where the order causes any other injustice to any person (the onus of establishing which shall be on that person). Thus, in terms of section 5(2) of the POCCCA, pending proceedings under or arising from section 4(3) bars subsequent applications for a disposal order.
9. Having considered the affidavit in support of the application and exhibits produced therein, the provisions of Section 5 of the POCCCA cited above and the fact that the Respondents were served with the present application and did not oppose the same, I am satisfied that the whole of the Specified Property should be transferred to the Republic as prayed for. One, the Interlocutory Order made on 31^st January 2023 has been in force for a period of not less than 12 months. Second, no appeal has been lodged and/or is pending against the said Interlocutory Order. Third, there are not pending proceedings under or arising from section 4(3) of the POCCCA in relation to the Specified Property.

Order

10. I therefore grant the application and issue the following orders –

(a)        A Disposal Order under Section 5(1) of the Proceeds of Crime (Civil Confiscation) Act 2008 (hereinafter referred to as the “POCCCA”) directing that the Specified Property, namely the sum of SCR102,000/- held on credit in an FCIU Receivership account with ABSA Bank (Seychelles) Limited, is transferred unconditionally to the Republic.

(b)        I further order that the transfer of the said Specified Property to the Republic shall confer absolute title to the Republic and shall be free from any claim of interest therein or of any encumbrances.

(b)        Notice of this Order is to be served on both Respondents.

Signed dated and delivered at Ile Du Port, Mahe on 4^th April, 2024.

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A. Madeleine, J