Kavou v Financial Intelligence Unit ( CS100 of 2011) [2011] SCSC 62 (31 August 2011);

 

THE REPUBLIC OF SEYCHELLES

 

IN THE SUPREME COURT OF SEYCHELLES HOLDEN AT VICTORIA

 

Miscellaneous Application No 100 of 2011

 

(Arising from Civil Side No. 27 of 2011)

 

Kavou B.V.=============================================Applicant

 

versus

 

Financial Intelligence Unit=================================Respondent

 

 

Frank Elizabeth for the Applicant

 

Barry Galvin for the Respondent

 

 

 

 

RULING

 

 

Egonda-Ntende, CJ

 

  1. This is an application made by Kazou B.V., hereinafter referred to as the applicant, seeking to set an interlocutory order of this court issued under section 4 of the Proceeds of Crime (Civil Confiscation) Act, hereinafter referred to as POCA, prohibiting it from dealing with or disposing of the specified property. This application is made under section 69 of the Seychelles Code of Civil Procedure, hereinafter referred to as SCCP. It is by motion and supported by an affidavit sworn by the applicant's attorney.

 

  1. The grounds of this application so far as I can gather from the supporting affidavit are that Mr Frank Elizabeth was absent when the initial application was called for hearing on 28th March 2011. He had been instructed as an Attorney in the matter but he was away in Mauritius undergoing medical treatment. He had made arrangements with another counsel, Mr Gabriel to hold his brief but Mr Gabriel had not shown up in court. The court had failed to ascertain if the respondent, now the applicant, had been served or not.

 

  1. The affidavit in support further asserts that the applicant's right to a fair trial was contravened by the order sought to be set aside. The funds in question are legitimately owned by the applicant.

 

  1. Mr Declan Barber, the Director of the respondent, filed an affidavit in opposition. He stated that he was informed by Mr Barry Galvin that Mr Nichol Gabriel was present in court at the time this case was called but he did not disclose to the court that he had any instructions in the matter when the case was called.

 

  1. At the hearing of this application Mr Frank Elizabeth moved as per his application. Mr Barry Galvin for the respondent opposed the application. He submitted that under section of 4(3) of POCA the applicant has an opportunity to apply to court and show that the funds in question legitimately belong to him. As a result the justice of the case lies with letting the order in question remain in office. After all it was only a temporary freezing order.

 

  1. I have some difficulty with the law under which this application is made. Section 69 of the SCCP states,

'If in any case in where one party does not appear on the day fixed in the summons, judgment has been given by the court, the party against whom judgment, has been given may apply to court to set it aside by motion made within one month after the date of judgment if the case has been dismissed, or within one month after execution has been effected if judgment has been given against the defendant and if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient excuse from appearing when the suit was called on for hearing, the court shall set aside the judgment upon such terms as to costs, payment into court or otherwise as it thinks fit and shall order the suit to be restored to the list of cases for hearing. Notice of such motion shall be given to the other side.'

 

  1. My first difficulty is that this provision refers to cases where a judgment has been entered ex parte. That is a final order or decree of court in a matter. In the case at hand what is in force and sought to be set aside is not a judgment but an interlocutory order which is definitely not a judgment. In my view this is not the provision that authorises applications of the nature of the present one in which what is sought is to set aside an interlocutory order rather than a judgment. Judgment and Interlocutory order are two different things. The applicant should seek a route through another provision of the law. If the SCCP is silent, recourse can be had to section 6 of the Courts Act.

 

  1. Even if one were to ignore the foregoing and consider the merits of the application the applicant has alleged two matters. One was that the court did not ascertain if there had been service. The record of the court is clear. The court did ascertain that there was service and did in fact inform counsel for the respondent (then applicant), of that fact. Mr Elizabeth has pedalled a falsehood. Just on account of this falsehood, it is questionable whether anything else he has stated on oath deserves any credit.

 

  1. And if there was any doubt as to service of the application in question the fact that Mr Frank Elizabeth was instructed in the matter including appearing in court on the day the application was to be heard and Mr Elizabeth has stated so on oath is proof of service upon his clients, the applicants.

 

  1. The other matter Mr Elizabeth raised was that he was prevented by sufficient excuse for not appearing. He was in Mauritius undergoing medical treatment. Other than his word he has provided no scintilla of evidence in support thereof. Even he was to be given credit for this, he states that he instructed Mr Gabriel to hold a brief for him on that day. He does not state why Mr Gabriel did not represent him, when in fact he was in court at the time this case was called. There is no affidavit sworn by Mr Gabriel to explain why he did not appear in the matter at the time it was called when he had been instructed in the matter.

 

  1. Since it is Mr Gabriel who had the brief to appear on the day in question it is the explanation for his none appearance that would form the sufficient excuse to be considered by this court. It is not Mr Elizabeth's absence that needed explanation. He knew he was going to be away. He did the correct thing. He instructed a colleague to hold his brief. It is the failure of that colleague that needs explanation. And there is none.

 

  1. The last ground, if I can call it that, that the applicant relied upon was that it had been denied the right to a fair hearing. The applicant has not been denied a fair hearing. It just did not avail itself of that right at that stage. Nevertheless the applicant is not shut out of the palace of justice. It can still come to this court by way of section 4(3) of POCA and it will be heard.

 

  1. Though a party can appear by counsel in a matter it appears to me to be prudent for that party to still turn up in court and be present when the case or matter is heard or called up. The party needs to be present to instruct his counsel as the matter progresses. Or if counsel does not turn up as it turned out in this case to be able to inform court as to what he wished to do in the circumstances. This applicant did not turn up in court either by its attorney or by its own officers. The applicant was aware of the date for hearing. No sufficient explanation has been provided for this lapse.

 

  1. This application has no merit. It is dismissed with costs.

 

Signed, dated and delivered at Victoria this day of September 2011

 

 

 

 

 

 

FMS Egonda-Ntende

Chief Justice