OMNICANE LIMITED v TONTA M. L.

2023 SCJ 295

Record No. 120594

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Omnicane Limited
Applicant
v.

Marie Liliane Tonta

Respondent

-------------

JUDGMENT

This is an application to hold the respondent in contempt of court for having

deliberately flouted an interim order issued by the learned Judge in Chambers on
26 July 2019 (“the interim order”).

In addition to the affidavit and its annexes sworn in support of this application, the
applicant adduced oral and documentary evidence in Court, namely by calling:-

(a) Mrs Narayanen, Principal Registration Officer, who produced a deed of

sale, dated 6 August 2019, of a plot of land of 5 arpents or 21,104.35 m2
(“the land in lite”) by the respondent to her son Yves Robert Tonta
(Document B);

(b) Mr Jawaheer, a registered usher, who stated that he effected service of

the interim order on the respondent in person and produced the notice of
denunciation together with the return of service (Document C) and a copy
of the order served on the respondent (Document D); and

(c) Mr Chung King Sow, the applicant’s representative, who deposed and
produced a bundle of documents (Document E) in support of the
application.
 2

On the other hand, the evidence for the respondent consisted of an affidavit and
her oral testimony.

I have duly considered the whole evidence on record and the submissions of
learned Counsel. The admitted or proven facts are as follows: on 26 July 2019, the
learned Judge in Chambers issued the interim order in the nature of an injunction
restraining and prohibiting the respondent from selling, disposing of, mortgaging or
encumbering in any manner whatsoever, the land in lite situate at Mon Desert,
Grand Port. On 30 July 2019, the respondent was served personally with a copy of the
interim order by a registered usher, Mr Jawaheer. Nevertheless, by virtue of a notarial
deed dated 6 August 2019 (Document B), which was duly transcribed, the respondent
sold the land in lite to her son Yves Robert Tonta for the sum of Rs25 million, paid “hors
la vue du notaire”.

In Court, the respondent confirmed that she was served personally with the interim
order by an usher but she stated that, at the time, she was in a distressed condition as
her son had passed away and there was a wake at her place. She admitted that the fact
that she had deliberately sold the land in lite to another son in spite of the interim order
was a serious matter and she begged for excuse.

It is to be noted that it was only in Court that the respondent came up for the first
time with the version that she was in a distressed condition due to the loss of her son.
This version is nowhere to be found in her affidavit. Although one might understandably
feel sympathy for the respondent for the loss of her son, she gave scanty and confusing
details about his death and she did not even produce a death certificate. And this did not
prevent her from being lucid enough, one week later, to go before a notary to sell the land
in lite allegedly for the huge sum of Rs25 million to another son, in deliberate breach of
the interim order of which she was well aware.

In her affidavit, the respondent has simply stated that she was the lawful owner of
the land in lite by inheritance and that she has sold it to her son in good faith. The
applicant, on the other hand, alleges that the land in lite forms part of its land and that the
respondent sold the land in lite to her son by virtue of a fraudulent survey report and an
invalid PIN certificate.

True it is that the ownership of the land in lite is the subject matter of a dispute
between the parties. However, the issue to be determined in this case is not the
 3

ownership of the land in lite. The real question before me is whether the respondent has
committed a contempt of court by deliberately disobeying and breaching the interim order
issued by the learned Judge in Chambers on 26 July 2019. In the light of the
overwhelming evidence on record, including the respondent’s admissions while testifying
in Court, the answer can only be in the affirmative. The respondent was served personally
with the interim order in the nature of an injunction restraining and prohibiting her from,
inter alia, selling the land in lite. Yet this is exactly what she did one week later by selling
it before a notary to her own son, allegedly for the sum of
Rs25 million. It is to be noted that unsurprisingly she left default afterwards before the
Judge in Chambers so that the interim order was made interlocutory on
10 February 2020, with the applicant being unaware at that time that she had already sold
the land in lite.

For the above reasons, I find that the applicant has established beyond reasonable
doubt that the respondent has committed a contempt of court by deliberately flouting the
interim order issued by the learned Judge in Chambers on 26 July 2019.

With regard to the sentence to be imposed on a person found guilty of contempt,

section 18C of the Courts Act provides for a penalty of imprisonment for a term not
exceeding one year or a fine not exceeding Rs300,000.

I have taken into consideration the plea in mitigation of learned Counsel for the
respondent and all the facts and circumstances of the present case, including the
respondent’s old age and her alleged distressed condition at the material time, although
she was lucid enough, one week after, to sell the land in lite before a notary to her own
son for the huge sum of Rs25 million allegedly paid “hors la vue du notaire". I cannot
overlook the wilful and deliberate flouting of a court order by the respondent, which is no
doubt a serious matter. I am of the view that a lenient sentence would be sending the
wrong signal and would not act as a deterrent to those who might be tempted to
circumvent court orders like the respondent. I find that a custodial sentence is warranted.
I accordingly sentence the respondent to undergo 3 months’ imprisonment for contempt.

D. Chan Kan Cheong

Judge
21 July 2023
-------------

For Applicant : Mr T. Koenig, SA

 4

Mr P. Doger De Speville, SC
Mrs M. Espitalier Noel, of Counsel

For Respondent : Mr L. P. Boodhna, Attorney-At-Law

Mr G. Saulick, of Counsel