The Supervisory Authority v Cresswell Overseas S.A.

• Jurisdiction: Antigua and Barbuda
• Judge: Pereira CJ,Webster JA
• Judgment Date: 30 October 2019
• Judgment citation (vLex): [2019] ECSC J1030-1
• Docket Number: ANUHCVAP2017/0003
• Court: Court of Appeal (Antigua and Barbuda)
• Date: 30 October 2019

[2019] ECSC J1030-1

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

ANUHCVAP2017/0003

Between:

The Supervisory Authority

Appellant/Applicant

and

[1] Cresswell Overseas S.A.

[2] Meinl Bank (Antigua) Ltd.

Respondents

Appearances:

Mr. Anthony Armstrong, Director of Public Prosecutions, for the Applicant

Mr. Frank Walwyn appearing with Ms. Jacqueline Walwyn for the First Respondent

Mr. Loy Weste for the Second Respondent

Application for conditional leave to appeal to Her Majesty in Council — Antigua and Barbuda Constitution Order — Section 122(1)(a) — Appeal as of right — Whether the appeal lies as of right pursuant to section 122(1)(a) of the Antigua and Barbuda Constitution Order — Section 122(2)(a) — Great general or public importance — Whether the appeal involves some question of great general or public importance or otherwise pursuant to section 122(2)(a) of the Antigua and Barbuda Constitution Order

The applicant brought this application by way of notice of motion for conditional leave to appeal to Her Majesty in Council pursuant to sections 122(1)(a) and 122(2)(a) of the Constitution of Antigua and Barbuda (“the Constitution”), against the decision of the Court of Appeal on 4 ^th July 2019 which dismissed the applicant's appeal and affirmed that the High Court had no jurisdiction to register and give effect to a Brazilian freezing order.

These proceedings started out as a diplomatic request from the government of Brazil to the government of Antigua and Barbuda for the registration of a Brazilian freezing order referred to as “the Moro Order”. In accordance with the Brazilian government's request, the Supervisory Authority (the applicant herein) made an ex parte application to the High Court on behalf of the government of Antigua and Barbuda to register the Moro Order pursuant to section 27 of the Mutual Assistance in Criminal Matters Act (“MACMA”). The application was granted, and the Moro Order registered and given full effect in Antigua and Barbuda (this order shall be referred to as “the Registration Order”).

The first respondent applied to have the Registration Order set aside, principally on the ground that the judge had no jurisdiction to register the Moro Order under section 27 of MACMA, as the section pertains only to orders originating from Commonwealth countries. The application was granted, and the Registration Order set aside for lack of jurisdiction. On appeal, the Court of Appeal considered whether there was jurisdiction to register the Moro Order pursuant to: (i) MACMA; (ii) the Money Laundering Prevention Act; (iii) a number of international treaties; and (iv) the Black Swan principle. The Court dismissed the applicant's appeal, and agreed that the judge had no jurisdiction on any of the bases alleged by the applicant.

The applicant, being dissatisfied with the decision of the Court of Appeal, now seeks to appeal further to the Privy Council. The applicant's motion for conditional leave to appeal is presented on the grounds that the proposed appeal is as of right in accordance with section 122(1)(a) of the Constitution of Antigua and Barbuda and, alternatively, that the questions raised in the appeal are of great general or public importance per section 122(2)(a) of the Constitution.

Held: dismissing the application and awarding costs on the application to the respondents to be assessed if not agreed within 21 days, that:

• 1. The value threshold under section 122(1)(a) of the Constitution must be considered in relation to the effect that the judgment on appeal has on the applicant's property or rights. In these proceedings, there was no question of the existence of a proprietary right held by the applicant or any question of the applicant's right of disposal over the money held in Meinl Bank. Neither were there any confiscation or condemnation proceedings at play either in Brazil or in Antigua and Barbuda. The applicant's stake in these proceedings was merely to secure the registration of the Moro Order and nothing more. The applicant's proposed appeal is therefore automatically precluded from proceeding as an appeal as of right under section 122(1)(a) of the Constitution. In any event, there is no indication that the proposed appeal, relates directly or indirectly to the money purported to be frozen by the Moro Order. In all the circumstances, therefore, the grant of leave to appeal on the basis of section 122(1)(a) would not be appropriate.

  ECCO Inc. v Mega-Plex Entertainment Corporation SLUHCVAP2017/0032 (delivered 4th July 2019, unreported) distinguished; Bank Crozier Limited (In Liquidation) and another v Garvey Louison Liquidator of Bank Crozier Limited [2008] ECSCJ No.80 distinguished; Jacpot Ltd v Gambling Regulatory Authority [2018] UKPC 16 considered; Macfarlane et al v Leclaire et al [1862] UKPC 22 applied.

• 2. The Court of Appeal's finding was not, as the applicant suggests, that the treaties relied upon were not ratified. Rather, the Court found that the treaties were, in fact, ratified, but not in a way that could confer jurisdiction to register the Moro Order. The question of whether the treaties were ratified was strictly a matter of interpreting the Ratification of Treaties Act to determine whether the procedural requirements of the Act had been satisfied. By its very nature this question was eminently procedural and a simple matter of statutory interpretation, which does not give rise to an issue of great general or public importance.

  Pacific Wire & Cable Company Limited v Texan Management Limited et al British Virgin Islands HCVAP2006/019 (delivered 6th October 2008, unreported) followed; Barbuda Enterprises Ltd v Attorney General of Antigua and Barbuda (1993) 42 WIR 183 distinguished; Mutual Life and Citizens' Assurance Co. Ltd. And Anor v Evatt [1971] AC 793 considered.

• 3. The state's obligation to give legal assistance to foreign states is uncontroversial as it arises from the texts of treaties which have been signed, entered into force and ratified by resolutions of Antigua and Barbuda's sovereign parliament. The Court of Appeal did not in any way purport to comment on the state's obligations to non-Commonwealth countries, as these obligations were never in issue or dispute. Rather, the heart of the issue before the Court was whether the procedure contained in MACMA, for discharging those obligations, had been complied with. No question of great general or public importance can therefore arise in this regard as the Court of Appeal's decision raises no question on the existence of obligations on the part of the state to provide mutual legal assistance to non-Commonwealth countries – the issue was simply one of whether the procedure had been followed for that assistance to be given.

• 4. The failure of the Court of Appeal to expressly address the applicant's argument on comity of nations is, of itself, not sufficient basis for the referral of an appeal to the Privy Council. The applicant must go further to demonstrate that the argument, which was not addressed, had some real possibility of changing the end-result of the appeal if it were considered by the Court of Appeal or the Privy Council. The applicant has not furnished the Court with any authority to the effect that comity of nations is a legal basis for the registration of the Moro Order, notwithstanding that the court's jurisdiction in this regard is very carefully regulated by legislation which does not permit the exercise of that jurisdiction in these circumstances. In the absence of such authorities, the ineluctable conclusion is that the applicant has failed to meet the threshold required by section 122(2)(a).

  Pacific Wire & Cable Company Limited v Texan Management Limited et al British Virgin Islands HCVAP2006/019 (delivered 6th October 2008, unreported) considered; ECCO Inc. v Mega-Plex Entertainment Corporation SLUHCVAP2017/0032 (delivered 4th July 2019, unreported) considered.

Pereira CJ

1 This is a contested application for conditional leave to appeal to Her Majesty in Council against the decision of the Court of Appeal on 4 ^th July 2019, dismissing the applicant's appeal and affirming that the High Court had no jurisdiction to register and give effect to a Brazilian freezing order.

2 These proceedings started out as a diplomatic request from the government of Brazil to the government of Antigua and Barbuda for the registration of a Brazilian freezing order referred to as “the Moro Order”. The Moro Order sought to freeze monies in a number of bank accounts pending the outcome of money laundering investigations by Brazilian anti-money laundering authorities. Among the monies which the Moro Order intended to freeze was a sum of $50,000,000.00 USD held by Cresswell Overseas S.A. at Meinl Bank (Antigua) Ltd. (the respondents herein). 1 In accordance with the Brazilian government's request, the Supervisory Authority (the applicant herein) made an ex parte application to the High Court on behalf of the government of Antigua and Barbuda to register the Moro Order pursuant to section 27 of the Mutual Assistance in Criminal Matters Act 2 (“MACMA”). The application was granted and the Moro Order registered and given full effect in Antigua and Barbuda.

3 Upon receiving notice of the registration order, the first respondent (“Cresswell”) applied to set aside the order giving effect to the Moro Order (“the Registration Order”), claiming principally that the judge had no jurisdiction to register the Moro Order under section 27 of MACMA, as the section pertains only to orders originating from Commonwealth countries. Cresswell further argued that MACMA sets out a specific procedure for the registration of orders from non-Commonwealth countries,

like Brazil; that the procedure had not...