PROOF OF OWNERSHIP OF SEIZED GOODS
LexInter | May 9, 2003 | 0 Comments

PROOF OF OWNERSHIP OF SEIZED GOODS

APPELLANT and RESPONDENT:
CONNECTICUT BANK OF COMMERCE
CORPORATE APPELLANT and RESPONDENT: APPELLANT
AND RESPONDENT:
SA SOCOTRAM – CONGOLAN TRANSPORTS MARITIMES
COMPANY INTIMATE:
SCP ERIC CRUSSARD
RESPONDENT:
SA BELGOLAISE BANK
COMPOSITION and deliberations:
Chairman and President: during the proceedings : ANQUETIL,
Advisors: Madame BALAND and Madame BOREL PETOT.
DEBATES: at the public hearing of 4 APRIL 2002
REGISTRAR:
During the debates and the delivery of the judgment, Mrs ARNABOLDI.
STOP: contradictory.
Publicly pronounced by Mr. ANQUETIL, President, who signed the minute with Mrs. ARNABOLDI, Registrar.
REMINDER OF THE PREVIOUS PROCEDURE:
By contradictory judgment rendered on November 12, 2001 (RG N ° 01/85107), the execution judge of the Tribunal de Grande Instance of PARIS, at the request of the company SOCOTRAM, pronounced the nullity, in that they aim SOCOTRAM, the seizures-attribution carried out on October 24, 2001 by SCP Eric CRUSSARD at the request of WALKER INTERNATIONAL HOLDINGS LTD in the hands of Banque BELGOLAISE, CREDIT LYONNAIS, SOCIETE GENERALE and BNP PARIBAS, in execution an arbitration award rendered on July 20, 2000, exequaturated on December 4, 2000 and served on the following December 19; he condemned the company WALKER INTERNATIONAL HOLDINGS LTD to pay to the company SOCOTRAM the sum of 150,000F in damages and that of 15,000F as compensation for irrecoverable costs;
By contradictory judgment rendered on November 12, 2001 (RG N ° 01/85108), the execution judge of the Tribunal de Grande Instance of PARIS, at the request of the company SOCOTRAM, pronounced the nullity, in that they aim SOCOTRAM, the seizures-attribution carried out on October 24, 2001 by SCP Eric CRUSSARD at the request of CONNECTICUT BANK OF COMMERCE at the hands of Banque BELGOLAISE, CREDIT LYONNAIS, SOCIETE GENERALE and BNP PARIBAS, in execution a
judgment rendered on May 12, 1999 by the High Court of London, exequateted on October 12, 2001 and served on the following October 16; he condemned the company CONNECTICUT BANK OF COMMERCE to pay to the company SOCOTRAM the sum of 150,000F in damages and that of 15,000F as compensation for irrépétibles costs;
By contradictory judgment rendered on December 6, 2001 (RG N ° 01/85666), the execution judge of the Tribunal de Grande Instance of PARIS referred by the company SOCOTRAM to a dispute of new seizures-attribution made against him on the 27 November 2001 by SCP Eric CRUSSARD at the request of both the company CONNECTICUT BANK OF COMMERCE and the company WALKER INTERNATIONAL HOLDINGS LTD in the hands of the BANQUE BELGOLAISE, on the same bases (and targeting the funds released by the release of previous seizures pronounced by the aforementioned judgments), rejected the challenge in view of new documents produced by the parties and dismissed SOCOTRAM from all its claims;
THE PROCEDURE BEFORE THE COURT:
The company WALKER INTERNATIONAL HOLDINGS LTD appealed against judgment 01/85107 of November 12, 2001 against the company SOCOTRAM, appeal registered under number RG 2001/19489;
The CONNECTICUT BANK OF COMMERCE company appealed against judgment 01/85108 of 12 November 2001 against the SOCOTRAM company, appeal registered under number RG 2001/19488;
SOCOTRAM has appealed against judgment 01/85666 of December 6, 2001, against WALKER INTERNATIONAL HOLDINGS LTD, CONNECTICUT BANK OF COMMERCE, SCP Eric CRUSSARD, bailiff, and Banque BELGOLAISE, third party garnishee, call registered under number RG 2001/20929;
Because of the connection between these three appeals, the dispute relating in particular to the question of whether the SOCOTRAM company is or is not an emanation of the REPUBLIC OF CONGO, the only subject of the warrants serving as a basis for the proceedings, the proceedings were joined on January 31, 2002 under the number RG 2001/19488;
The closing order was issued on April 3, 2002;
In their last entries before closing, dated March 28, 2002, the companies WALKER INTERNATIONAL HOLDINGS LTD and CONNECTICUT BANK OF COMMERCE, seizing creditors, and the SCP Eric CRUSSARD, bailiff, dispute in limine litis the ordered junction, and ask that the disputes be dealt with in two separate instances as follows: WALKER appellant of the judgment of November 12, 2001 and respondent of the judgment of December 6, 2001 / CONNECTICUT, appellant of the judgment of November 12, 2001 and respondent of the judgment of December 6, 2001, so that two judgments are delivered, one for the company WALKER and the other for the company CONNECTICUT; they ask for a disjunction;
In addition, the conclusive ones raise the inadmissibility of the procedural exceptions invoked by the company SOCOTRAM, which were not it simultaneously and before any defense on the merits;
With regard to the WALKER instance, after a reminder of the facts and the procedure specific to this company, the conclusive parties maintain that SOCOTRAM is only an outright emanation of the Republic of the Congo and that consequently the seizures made are valid; that indeed an emanation of a state the legal person
– which does not have its own and distinct patrimony from the state on which it depends, – which performs acts normally considered as falling within the competence of the said state,
– which undergoes the interference of this state either in the decision-making, or by the disposal of the patrimony, thus translating a state intervention in the daily management of the aforementioned emanation;
To maintain that SOCOTRAM is an emanation of the REPUBLIC of CONGO, it is invoked:
– the decree of January 29, 1998 of the President of the Republic of Congo and two decrees of the same day taken into application, of the Minister of Transport, Civil Aviation and the Navy from which it follows that SOCOTRAM collects 40% of the rights of maritime traffic generated by the foreign trade of the Republic, and that there is thus interference of the latter in the daily management of the company SOCOTRAM which is similar to a tax collector; that if the SOCOTRAM company is officially private, it is only in the extension of the State of Congo that it can collect a port tax; that it thus forms with this State a single entity; that SOCOTRAM is thus financed by public revenue intended for the Congolese State, which enriches both the State and society;
They also maintain that with regard to the control and direction of SOCOTRAM, it is officially 45% directly controlled by the Congolese State, which has a blocking minority, the remaining 55% belonging to the company SHIPPING and TRADING registered in Liechtenstein, tax haven; that the real leader of SOCOTRAM is Willy Nguesso, an influential member of the family of President Sassou Nguesso and of the Congolese government through the family group of Power; the conclusive cites various journalistic articles for this purpose; they denounce a legal covering which masks the emanation of the Republic;
They criticize the opposing means and documents, in particular Exhibit 46, and maintain that SOCOTRAM is in fact an instrument of the Republic of the Congo which by delegation exercises certain prerogatives of the State with the heritage of which its own heritage merges, due to its interference in its operation;
on the subsidiary requests of SOCOTRAM, they conclude that there is no need for a prior service of the enforceable titles on this company before any execution, the service on the State sufficient; they maintain that the service of the arbitration award in accordance with the rules of article 688 of the New Code of Civil Procedure;
they contest the claims for damages, recalling the terms of the judgment of 6 December 2001, and maintaining that the recovery undertaken is not faulty;
With regard to CONNECTICUT, after a reminder of the facts and procedure specific to this company, the same means are copied;
Consequently, it is requested the reversal of the judgments of November 12, 2001 and the confirmation of the judgment of December 6, 2001, and to declare valid the seizures-attribution practiced;
The WALKER and CONNECTICUT companies each claim 5,000 euros for their irrecoverable costs against the SOCOTRAM company;
They demand the dismissal of the demands of the BELGOLAISE BANK;
No request is made by the conclusive in favor of the SCP Eric CRUSSARD joined to them;
In its latest conclusions of March 22, 2002, the SOCOTRAM company raises the nullity of the seizures made against it for lack of titles, those invoked at the basis of the said seizures against the REPUBLIC OF CONGO and the CONGOLAISE AMORTISSEMENT CAISSE, and not the SOCOTRAM company. ; on the concept of emanation, it recalls that the burden of proof lies with the prosecuting creditor; it recalls as a need that it is a public limited company, commercial, enjoying ipso jure legal personality by the sole fact of its registration in the Trade Register; that its legal personality is not to be confused with any other; that the State of CONGO only holds 45% of the capital, the remainder belonging to a private company TRADING AND SHIPPING, transferee of the shares subscribed for at the constitution by the French maritime armament company SAGA and by the Congolese company ELF CONGO in which the French private interests are in the majority; it further specifies that the administration of the company is ensured by a Board in which private interests are in the majority by statute, and which appoints the managing director; it has not been demonstrated that the State of Congo would exercise de facto power in the conduct of social affairs; it invokes the memorandum of understanding concluded on January 18, 1990 between the State and the company, which recognizes the specific character of the heritage of the said company; maritime armament SAGA and by the Congolese company ELF CONGO in which French private interests are in the majority; it further specifies that the administration of the company is ensured by a Board in which private interests are in the majority by statute, and which appoints the managing director; it has not been demonstrated that the State of Congo would exercise de facto power in the conduct of social affairs; it invokes the memorandum of understanding concluded on January 18, 1990 between the State and the company, which recognizes the specific character of the heritage of the said company; maritime armament SAGA and by the Congolese company ELF CONGO in which French private interests are in the majority; it further specifies that the administration of the company is ensured by a Board in which private interests are in the majority by statute, and which appoints the managing director; it has not been demonstrated that the State of Congo would exercise de facto power in the conduct of social affairs; it invokes the memorandum of understanding concluded on January 18, 1990 between the State and the company, which recognizes the specific character of the heritage of the said company; Congo State would exercise de facto power in the conduct of social affairs; it invokes the memorandum of understanding concluded on January 18, 1990 between the State and the company, which recognizes the specific character of the heritage of the said company; Congo State would exercise de facto power in the conduct of social affairs; it invokes the memorandum of understanding concluded on January 18, 1990 between the State and the company, which recognizes the specific character of the heritage of the said company;
It maintains that the circumstance that SOCOTRAM would be responsible for collecting a
tax on behalf of the State is not in itself operative, since it is not the exclusive object of the company; that in reality the activities of the company fall within the framework approved by the UNCTAD, which envisages the rule of 40/40/20 of which the decree of January 29, 1998 applies; it recalls that SOCOTRAM currently carries out its activity by charter, pending the acquisition of its own vessels, alone or in partnership with other shipping lines; it specifies that the fees collected are not returned to the State but constitute subsidies, elements of its turnover; that only part of the profits goes to the State in proportion to its share;
It specifies that despite the quality of national armament, it has no prerogative of public power, in particular in the organization of the maritime transport of the Congo which comes under the General Directorate of the Merchant Navy; it further specifies that it has no monopoly;
alternatively, it maintains that the title invoked by CONNECTICUT was not yet executory, the time limit for appeal not having expired, and that the service of the title by WALKER was not made to him;
It therefore concludes that the seizures made are illegal; it requests compensation for this diversion of procedure operated, intended to put pressure on the conclusive by paralyzing its activities to take charge of the disputed debts; in addition to the freezing of funds, the seizures carried out at the main banks of the place of Paris tarnished the reputation of the company; it requests confirmation of the judgments of November 12, 2001 by asking that the damages be increased to 150,000 euros for each of the seizors held a solidum; taking into account the behavior of the creditors, it asks that it be made to them, as well as to the official bailiff, and this under penalty, to practice new seizures in application of the titles invoked in support of the previous seizures;
BANQUE BELGOLAISE, respondent within the framework of the appeal formed against the judgment of December 6, 2001, notes that SOCOTRAM does not form any request against it and maintains that it is not party to the litigation; she requests that she be exonerated and jointly order the other parties to pay her 5,000 euros for her irreparable costs;
Subsequent to the closing of April 3, 2002, new conclusions in the name of the
companies WALKER INTERNATIONAL HOLDINGS LTD and CONNECTICUT BANK OF COMMERCE, garnishing creditors, and of the SCP Eric CRUSSARD
were filed;
SOCOTRAM requests that it be rejected;
ON THIS, THE COURT,
On questions of procedure:
Considering that under article 784 of the New Code of Civil Procedure, the closing order can only be revoked if it turns out to be a serious cause since it was issued; that no fact of this nature is alleged; that there is therefore no grounds for revocation of the closing order, none of the parties requesting the rest;
Considering that under article 783 of the New Code of Civil Procedure, no conclusion can be filed nor any document produced after the pronouncement of the closing order, on pain of inadmissibility;
that the conclusions served on April 2 but not filed with the registry before the closing by the companies WALKER INTERNATIONAL HOLDINGS LTD and CONNECTICUT BANK OF COMMERCE, garnishing creditors, and the SCP Eric CRUSSARD (as it results from the absence of stamp of the registry and their non-recording in the computer slip) are inadmissible;
Considering that the joinder was pronounced in the interest of the good administration of justice, in particular to avoid a conflicting decision, the main question raised by the dispute of the company SOCOTRAM against the seizures carried out by the company WALKER and by the company CONNECTICUT being to know if the company SOCOTRAM is or not an emanation of the REPUBLIC OF CONGO; that on this account, the defense of the two creditors is exactly the same; that the rest in the instance which gave rise to the judgment of 6 December 2001, SOCOTRAM had assigned the two creditors together; that there is reason for disjunction;
On the validity of the disputed seizures:
Considering on the merits, that it is not disputed that the enforceable titles which prevail on the companies WALKER INTERNATIONAL HOLDINGS LTD and CONNECTICUT BANK OF COMMERCE, garnishing creditors, do not target the company SOCOTRAM which was not party nor in the the proceeding which gave rise to the arbitration award of July 20, 2000 nor in the proceeding giving rise to the judgment of the High Court of Justice in London of May 12, 1999;
that in application of article 2 of law N 91-650 of July 9, 1991, the creditor provided with an enforceable title noting a liquid and payable debt can only continue the enforcement thereof on the property of his debtor ;
that the disputed seizures could not therefore be regular against the company SOCOTRAM unless this would be considered as an emanation of the REPUBLIC OF CONGO, against whom the aforementioned titles can be usefully invoked by the seizing creditors; that the burden of proof is on them;
Considering in view of the following documents produced by the SOCOTRAM company and in particular:
– declaration in the trade register of the SOCOTRAM company dated 21 August 2000,
– provisions of the Uniform Act relating to the law of commercial companies, applicable, according to Article 1, even to commercial companies in which the State or a legal person governed by public law is associated, and in particular Article 98 according to which any company has legal personality from its registration in the trade register,
– SOCOTRAM company statutes, according to which it is:
1 ° a public limited company whose purpose is to ensure a regular maritime service between Congolese seaports and foreign ports as well as cabotage between seaports, to operate directly or indirectly all activities related to trade and maritime transport, generally of carry out all commercial, industrial, financial, movable or real estate transactions, relating directly or indirectly to the corporate purpose or being useful to it or likely to facilitate its achievement,
2 ° endowed with a capital of 100,000,000 CFA francs , divided into 1000 shares and distributed at the rate of 450 shares (A) held by the Republic of Congo and 550 shares (B) held by the company TRADING and SHIPPING under private law,
3 ° managed by a Board of 9 members, including 4 appointed in respect of A shares belonging to the Republic of Congo and 5 appointed by the holders of B shares, which intuitu personae appoints a chairman from among its individual directors and, at the request of the chairman, a managing director, director or outside person, a board which has the broadest powers to manage the company and carry out all operations relating to its purpose,
4 ° with a general meeting which decides in particular on the distribution of profits and controlled by statutory auditors,
– 1999 and 2000 balance sheets of SOCOTRAM (commercial accounts)
that the company SOCOTRAM is a commercial company of private right, with the own inheritance, of which the State of Congo is only a minority shareholder which does not have any own power to impose its decisions; that this participation of the State does not undermine the legal independence of SOCOTRAM and its capacity to hold its own rights and obligations; that it is always necessary to distinguish the ownership of the capital of a legal person, partially or totally public, and the legal ownership of the goods which it has in its own name;
Considering that the garnishing creditors, to maintain that the company SOCOTRAM is an emanation of the REPUBLIC OF CONGO, mainly invoke the decree 98-39 of January 19, 1998 and the orders 98-11 and 12 of January 29, 1998 from which it follows that the company SOCOTRAM comes under the national armament and as such collects taxes for its benefit from the public authority; that it would be a tax collector on behalf of the Congolese State and that there would be confusion of assets;
But considering that the auditor of the company certifies that the transport fees that the company invoices and collects constitute its turnover and are not collected on behalf of the Congolese State with a view to repayment to the Treasury, and that the Congolese State, a minority shareholder, can only receive sums from this company in respect of dividends distributed by it by decision of the general meeting of shareholders;
that other companies, in particular the CONGO LIMA company and the SMC company, benefit from the same advantages as any other Congolese national armament (in particular SOCOTRAM) in the exercise of their activities, as it results from decrees of the Minister of Transport;
that thus, SOCOTRAM is a private law company which, among others, has been granted a share of the public maritime service generated by Congolese foreign trade, and which is remunerated for the service rendered by the law conferred to collect an appropriate tax, according to an internationally recognized custom;
that in doing so, it does not in any way become an organ of the Congolese State responsible for collecting taxes but retains its legal independence;
Considering finally that the remarks drawn from the personality of the current leader of SOCOTRAM and his personal or family ties with the current Congolese rulers, are ineffective as regards the determination of the legal independence of the said company;
Considering that the SOCOTRAM company is therefore not an emanation of the REPUBLIC OF CONGO and is not the debtor of the companies WALKER INTERNATIONAL HOLDINGS LTD and CONNECTICUT BANK OF COMMERCE; that the seizures litigious, operated on the basis of titles which did not aim society SOCOTRAM, were not it on property belonging to the debtor of the seizing creditors and are therefore null; that the judgments of November 12, 2001 will be confirmed and that of December 6, 2001 reversed;
On repair and other requests:
Considering that the garnishing creditors, who did not have a title against the company SOCOTRAM, did not proceed, before having the accounts of this company seized, with all the diligence that prudence imposed on them to ensure the reports exact legal documents that may exist between this company and the Congolese State; that the seizures made on October 24, 2000 are in these abusive conditions; that the first judges in their decisions of November 12, 2001 made an exact evaluation of the damage undergone by society SOCOTRAM; that there is reason to pronounce a solidarity between the two creditors who acted independently; that the judgments of November 12, 2001 will be confirmed;
Considering that even if the seizures of November 27, 2001 made on the day when the delegate of the First President had to issue his orders ruling on the requests for suspension of the provisional execution of the judgments of November 12, 2001,
(and who was to reject these requests), reflect unfair behavior towards SOCOTRAM, there is no reason to believe that the unsuccessful creditors will not respect the Court’s judgment in the future and would have the audacity to proceed, for the same causes, to new means of execution, which would seriously engage their responsibility;
that the request for on-call duty requested by SOCOTRAM to protect itself from it, will be rejected;
Considering that the BELGOLAISE bank was formed spontaneously following the appeal of the SOCOTRAM company which had rightly called it to the proceedings so that the decisions could be enforced against it; that no request however being made against it in appeal, it will be exonerated; that he should be granted 1 000 euros compensation for his costs irrépétibles appeal;
That no demand prosper against the SCP Eric CRUSSARD who will be exonerated; that having made common cause with the unsuccessful garnishee creditors, his irrevocable costs will not however be compensated;
That the irretrievable costs of calling SOCOTRAM will be compensated up to 20,000 euros;
that all the indemnities under article 700 of the New Code of Civil Procedure will be borne in solidum by the companies WALKER INTERNATIONAL HOLDINGS LTD and CONNECTICUT BANK OF COMMERCE whose seizures are canceled;
FOR THESE REASONS,
and those not contrary to the first judge,
Declares inadmissible the conclusions of the companies WALKER INTERNATIONAL HOLDINGS LTD and CONNECTICUT BANK OF COMMERCE, garnishing creditors, and of the SCP Eric CRUSSARD, filed after closing;
Rejects the request for disjunction;
Holds that SOCOTRAM is not an offshoot of the REPUBLIC OF CONGO;
Declare the seizures made against the company SOCOTRAM on October 24 and November 27, 2001 by SCP Eric CRUSSARD at the request of the company WALKER INTERNATIONAL HOLDINGS LTD on the basis of an arbitration award made on July 20, 2000, exequated on December 4, 2000 and served on the following December 19, on the one hand, and at the request of the company CONNECTICUT BANK OF COMMERCE for a judgment rendered on May 12, 1999 by the High Court of London exequatized on October 12, 2001 and served on 16 the following October on the other hand;
Consequently,
Confirms the judgments referred dated November 12, 2001 in all their provisions;
Reverses the judgment referred dated December 6, 2001 in all its provisions;
Also condemns in solidum the companies WALKER INTERNATIONAL HOLDINGS LTD and CONNECTICUT BANK OF COMMERCE, garnishing creditors, to pay to SOCOTRAM, debtor wrongly seized, the sum of 20,000 euros in application of article 700 of the New Code of Civil Procedure ;
Excludes SCP Eric CRUSSARD and BANQUE BELGOLAISE;
Also condemns in solidum the companies WALKER INTERNATIONAL HOLDINGS LTD and CONNECTICUT BANK OF COMMERCE to pay on the basis of article 700 of the New Code of Civil Procedure the sum of 1,000 euros to Banque BELGOLAISE;
Rejects all other requests from the parties;
Orders in solidum the companies WALKER INTERNATIONAL HOLDINGS LTD and CONNECTICUT BANK OF COMMERCE, garnishee creditors, to the costs of first instance generated by the reversed decision, and to the costs of appeal, the amount of which may be recovered directly by the attorneys of the cause in the conditions of article 699 of the New Code of Civil Procedure.
THE CLERK THE PRESIDENT

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