Lawyer Frank Elizabeth wins again against FIU.
Popular lawyer, Frank Elizabeth of Victoria Law Firm, has won two unprecedented cases before the court of appeal, one of which was against the Financial Intelligence Unit (FIU). The two cases were The Financial Intelligence Unit v Cyber Space Ltd and Tatiana Zalazina v Zoobert Ltd and others. Both cases involve offshore companies. In Cyber Space, the FIU had frozen a sum of $235,000 in the bank account of the company at BMI bank and had alleged that the money is derived from criminal conduct. FIU claimed that Cyber Space is involved in internet copyright infringement in Seychelles. Although the Supreme Court, presided over by the Chief Justice, had initially ruled in favour of Cyber Space, FIU decided to appeal against the judgment of the Chief Justice. In her judgment, Justice Mathilda Twomey said that this is the first case in Seychelles involving internet copyright infringement. FIU had adduced affidavit evidence of Liam Hogan, Deputy Director of FIU, Paul Warren of the International Federation of the Phonographic Industry, James Mullen of EMI Records, Michael Smith of Sony UK and Claire Sugrue of Universal Island Records and they all stated that the websites www.torrentreactor.com and www.torrentprivacy.com were not “licensed, permitted or authorized to make available, upload, reproduce, communicate to the public, distribute, supply or otherwise exploit or to aid, abet, encourage, authorize or assist in any way any third party to make available or otherwise exploit any album or other sound recordings owned by (their) companies in any format in the world.”Justice Twomey said that in essence the Court of Appeal has to consider three questions:
- Has there been an infringement of the artistic works alleged?
- Do the works alleged to have been infringed benefit from copyright protection in Seychelles?
- Does the facilitation of such infringement by a person amount to a criminal act? If so, does it constitute conspiracy to defraud?
In the consideration of these three questions Justice Twomey concluded that the answers to all three questions were in the negative. She said, “It should be noted that the copyright Act Cap 51 of the laws of Seychelles does not cover foreign works, unless they are first made, performed or published in Seychelles” The appeal of FIU was accordingly dismissed and the money of Cyber Space was released. In the other case which involved a company by the name of Med Enterprise Ltd, a woman, Tatiana Zalazina claimed that her company had been stolen from her by one John Stephen Kelly. The company was incorporated in Seychelles as an International Business Company on the 25th November 2005 under the International Business Companies Act 1994. Apparently Tatiana Zalazina brought an application before the Supreme Court in December 2008 asking the Court to declare her the sole beneficial owner of Med Enterprises Ltd after she learnt that there had been several fraudulent transactions in respect of her company, Med Enterprise Ltd. The company at the time had assets worth $25, 000,000. Judge Perera heard the application and held that the Court was satisfied on a prima facie basis that Tatiana Zalazina was the sole beneficial owner of the company. Less than two months later on 18th February 2009, Zoobert Ltd and others filed a third party opposition asking the Court to set aside the judgment of Perera. Judge Renaud allowed the application promptly setting aside the Perera’s judgment. Tatiana Zalazina being dissatisfied with the judgment of Renaud J, swiftly appealed to the Court of Appeal against the judgment. Justice Twomey, who also wrote the judgment in this case, said that “As this is the first time that Sections 172-175 procedures have effectively been used in Seychelles, we have taken some time to examine the rules relating to the provision.” The Court of Appeal in its final determination allowed the appeal of Tatiana Zalazina and declared her sole beneficial owner of the company, Med Enterprises Ltd. Before taking leave, Justice Twomey remarked, “We wish to make a final observation. We are of the view that this case reveals serious issues involving a financial and possibly criminal scam to which our financial sector may become vulnerable unless properly checked. We therefore further order that copies of this judgment be served on both the Seychelles international Business Authority and the Financial Intelligence Unit for further whatever action they deem fit to discharge of their statutory duties in the light of our findings.”