MOOTOOCARPEN V.

& ORS v THE DIRECTOR OF PUBLIC PROSECUTIONS

1990 SCJ 40
RECORD NO. 39454
IN THE SUPREME COURT OF MAURITIUS
In the matter of:MOOTOOCARPEN V. & ORS
Applicants
v.
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Judgment
The applicants, having been ordered to pay a fine for being in contempt of this Court, seek leave to appeal
against the decision to Her Majesty in Council. They were initially advised that they were entitled to do so as of right
pursuant to section 81(1)(d) of the Constitution coupled with section 206 of the Courts Act. Before the motion of leave
was made, a further affidavit was appended to the papers indicating that the motion was also made under section
81(1)(a) of the Constitution.
In the first place it is necessary to explain the relevant provisions of the Constitution, particularly in view of the
fact that it is sometimes incorrectly reported that the Supreme Court has denied someone the right of appeal to our
highest Court.
The Constitution, in section 81(1) provides that an appeal shall lie as of right in the following cases (a)

final decisions, in any civil or criminal proceedings, on questions as to the interpretation of the
Constitution;

(b)

final decisions in civil proceedings which involve a dispute as to some matter the value of which
exceeds Rs 10,000;

(c)

final decisions in proceedings brought under section of the Constitution, that is proceedings
where it is averred that someone's fundamental rights or freedoms prescribed in Chapter II have
been, are being or are likely to be infringed;

(d)

such other cases as may be prescribed by Parliament.

There are two instances where Parliament has so prescribed, namely section 48A of the Representative of the
People Act relating to electoral petitions and section 70A of the Courts Act to which we shall come back, shortly. It is,

however, important to note that, even in those cases where it is said that the appeal lies as of right, the rules of Court
lay down that an applicant must nevertheless seek leave of this Court, or of the Court of Appeal, as the case may be,
to be allowed to proceed. This is, firstly, to enable that Court to set out conditions for appealing, such as furnishing
surety, preparing the record within a reasonable time etc... And, secondly, to empower the Court to decide whether
the case falls squarely within one of the four types of situation indicated above. The Court, may for example, rule that
the impugned decision is not a final but an interlocutory one, or that the matter actually in dispute does not concern
something the value of which exceeds Rs 10000. We may open a parenthesis here to wonder why no one has thought
fit to introduce legislation in Parliament to raise that ceiling of Rs 10000, which was fixed 22 years ago, at a time when
only the Supreme Court could hear cases worth Rs 10000 or more. We venture to suggest that their Lordships in the
Judicial Committee would have some very unpleasant remarks to make if they were faced with an appeal relating to
the non-payment of the price of a T.V. set.
Next, the Constitution, in section 81(2) provides that an appeal shall only lie with the leave, i.e. with the
permission, of the Supreme Court or of the Court of Appeal (a)

against final decisions, in civil proceedings where, in the Court's opinion, the question involved
is one which should be submitted to Her Majesty in Council by reason of its great general or
public importance or otherwise;

(b)

in such other cases as may be prescribed by Parliament. Regarding (b), there is no instance of
any such prescription by Parliament.

Those provisions must, however, be read along with the all-important and over-riding section 81(5) which goes
like this:
(5)

Nothing in this section shall affect any right of Her Majesty to grant special leave to appeal to
Her Majesty in Council from the decision of any Court in any civil or criminal matter.

It follows that, where this Court does not grant leave, it is only expressing its opinion that it is not, in the first set
of cases covered by section 81(1), feasible to do so or, in the second set of cases governed by section 81(2), proper
to do so. It is always open to the unsuccessful applicant to petition the Sovereign, even in forma pauperis, under
section 81 (5). Her Majesty will then refer the matter for consideration to Their Lordships of the Judicial Committee of
the Privy Council.
We shall now consider the case for the applicants and deal first with section 70A of the Courts Act. On the 5th
May 1980, this Court delivered judgment dismissing an appeal against conviction by someone who was then a
member of the Bar on a charge of possession of property stolen by his client. On the 5th June 1980, a Bill was
published containing a number of provisions to amend the Courts Act. It also contained a clause which eventually
became section 70A of Courts Act and which reads thus:
70A.

Appeal to Her Majesty in Council

(1)

Notwithstanding any other enactment, an appeal shall lie from decisions of the Supreme
Court or the Court of Criminal Appeal to Her majesty in Council as of right in all criminal
cases.

(2)

The right of appeal under subsection (1) shall accrue in all cases where the judgment of
the Supreme Court or the Court of Criminal Appeal has been delivered on or after the
31st January 1980.

The Bill quickly went through all its stages and became law on the 30th June 1980. Eventually, the person for
whose benefit this particular provision had been triggered never proceeded with his appeal. Incidentally we may
usefully refer to Buxoo and another v. The Queen [Privy Council Appeal No. 18 of 1987] where their Lordships
held that they would intervene in criminal matters only where there was a clear departure from the requirements of
Justice, as expressed by Lord Summer in Ebrahim v. The King [1914 AC 599 at 614-615], and that they would not
regard section 70A as compelling them to go beyond their past practices or to sit as a Court of criminal Appeal.
We may now refer to Badry v. Director of Public Prosecutions [1982 MR 378], where a decision of the Privy
Council on an appeal against a committal for contempt is reported. The division of this Court which granted leave to
appeal and Their Lordships of the Judicial Committee obviously treated the matter as one governed by section 70A
the Courts Act, but it is equally plain that the point now made before us by the learned Director of Public Prosecutions
was never even hinted at in any of the proceedings. On the basis of the above well-known facts, and of the language
used in section 70A, it is our considered view that, when Parliament legislated for the first time to create, in favour of
persons convicted of offences, a right of appeal which did not previously exist except if a constitutional issue was
involved, it was never the legislators intention to establish a right of appeal, under section 81(i) of the Constitution,
against decisions to punish for contempt of Court. It is apposite to observe that the same 1980 amending Act added
section 189A to the Courts Act which read as follows:
189A Evidence of a formal character
(1)

In all criminal proceedings before any Court, an affidavit sworn by a person whose
evidence is of a formal character shall be sufficient evidence of the facts stated therein.

(2)

The Court say, if it thinks fit, and shall, on the application of the prosecution or the
accused, summon and examine any such person as to the facts contained in his affidavit
(emphasis supplied).

We know of the distinction sought to be made, not always successfully, between civil and criminal contempt.
We are also aware that the English Courts and their Lordships sitting on appeal from dependent territories and former
colonies have stated that contempt of Court is of a quasi-criminal nature. Indeed, in Ambard v. Attorney General for
Trinidad and Tobago [1936 AC 322], at p. 329, Lord Atkin had this to say:
It is sufficient to say that such interferences (with the administration of justice), when they amount to
contempt of Court, are quasi-criminal acts, and orders punishing them should, generally speaking, be
treated as orders in criminal cases

It is on that basis that the Privy Council has consistently held that it will, pursuant to provisions similar to
section 81(5) of our Constitution, entertain petitions for special leave to appeal against decisions punishing someone
for contempt of Court.
We have no doubt, however, that section 70A of the Courts Act was never intended to confer on this Court a
power, under section 81(1) of the Constitution, to consider an application for leave in cases such as the instant one.
We now turn back to section 81(1)(a) of the Constitution. There is undoubtedly an issue as to the interpretation
of the Constitution involved here, as it will be recalled that counsel for the then respondents in the main action, subject
of this appeal (now the applicants) had submitted that this Court had no power to punish for contempt at all because
the references in sections 5, 8 and 12 of the Constitution to "by law", "a law", "any law" and "the law" meant the
equivalent of a specific Contempt of Court Act which is not to be found in our statues. The issue, therefore, is whether
the term criminal proceedings" in section 81(1) (a) in includes proceedings for contempt, or rather whether it was the
intention of the framers thereof to include them. We have come across 3 cases decided by their Lordships, again on
appeal from Trinidad and Tobago, namely:
(i)

Maharaj v. Attorney General .for Trinidad and Tobago (No. 1), [1977 1 All E.R. 411];

(ii)

Maharaj v. Attorney General for Trinidad and Tobago (No. 2), [1979 A.C. 385]; and

(iii)

Chokolongo v. Attorney general for Trinidad & Tobago, [1981 1 WLF 106].

The case at (i) was brought by way of special leave, while the other 2 came on appeal as a result of decisions
in applications for constitutional relief, so that they do not have a direct bearing on our case. But they have enabled us
to observe that the provisions corresponding to our section 81(1)(a) in the Constitution in force in the territory of
Trinidad and Tobago at the time (it has since been replaced by a republican system) was section 82 (1) (c) which used
to read "final decisions in any civil, Criminal or other proceedings which involve a question as to the
interpretation of this Constitution (S.I. 1962 No. 1875). (the underlining is ours)
Turning back to our own Constitution, we see that the derogations, listed in section 5, from the right to personal
liberty, include,
(a)

in execution of the sentence of a court in respect of a criminal offence of which he has been
convicted;

(b)

in execution of the order or a Court punishing him for contempt of the court or of another court.

In section 8, when dealing with exceptions to the rule against deprivation of property, we observe (a)

by way of penalty for breach of the law or forfeiture in consequence of a breach of the law; and

(b)

in the execution of judgments or orders of courts.

Finally, in section 81 itself, subsection (1)(a) speaks of criminal proceedings whereas subsection (5) refers to
any criminal matter. Moreover, in this country, the term criminal proceedings has always been understood to mean
proceedings in a criminal case taken against a person charged with an offence, limited to crimes, misdemeanours or
contraventions, in accordance with rules prescribed for a fair trial.
For all those reasons we are of the view that we are not vested with the power to grant leave under section
81(1)(a) to persons mulcted for contempt.
The application is accordingly refused, with costs.

V.J.P. GLOVER
Chief Justice

Rajsoomer LALLAH
Senior Puisne Judge
15th February 1990