Chitika and Ors v Chipili and Ors (Appeal No. 173 /2021) [2023] ZMCA 214 (30 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: CHITIKA ELIZABETH Secretary DR. NEVERS MUMBA REUBEN SAMBO WINNIE ZALOUMIS CLEMENT ZULU GREGORY KAFULA MOFU �l\C OF l, \)Rl OF AP (Sued in her capacity as for the Movement for Multiparty Democracy) Appeal No. 173 /2021 15T APPELLANT 3 ND APPELLANT RD APPELLANT 4TH APPELLANT 5TH APPELLANT 6TH APPELLANT AND MWALE BANDA MANDO WEBBY CHIPILI MASHINI CHILESHE IDAH SAINETI NGOMA MIKE CHISAMBA MERCY MVULA PHILEMON ABIGAIL MABLE KATEBE LUCIA MWAPE ELLISON RABISON LUNGU JAMES NSOFWA SIMPOKOLWE MUSONDA GLADYS CHANDA NEMLOND MUGALA MARIA MALILWE KEBBY SINCHUNDU GASTON SICHILIMA GEOFFREY HENRY KOMBE MULENGA MANDA MALAMBO MULONGWE MULENGA 2 1sr RESPONDENT ND RESPONDENT RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 6TH RESPONDENT 7TH RESPONDENT gm RESPONDENT 9TH RESPONDENT 10TH RESPONDENT 11TH RESPONDENT 12TH RESPONDENT 13TH RESPONDENT 14TH RESPONDENT 15TH RESPONDENT 16TH RESPONDENT 17TH RESPONDENT 18TH RESPONDENT 19TH RESPONDENT 20TH RESPONDENT Coram: Chashi, Majula and Patel, JJA On 23rd August 2023 and 30th August 2023 For the Appellant: Ms. S. K. Banda Messrs. J & M Advocates. For the Respondent: Ms. M. Phiri Legal Aid Counsel Messrs. Makebi Zulu Advocates Messrs Frank Tembo & Partners for & standing in JUDGMENT Patel S. C., JA, delivered the Judgment of the Court. Cases referred to: 1. JCN Holdings General -SCZ Appeal No. 54 of 2016. Limited, Post Newspaper & Mutembo Nchito v The Attorney 2. Wynn Recourses Limited and Sun Yandong vs Siakamwi Chikuba {Sued as Receiver and Manager) 2020/HPC/0651. 3. Republic Ministry of Botswana, Renceau Design Consultants Architects) v Mitre Limited of Works Transport (sued as a Firm previously and Communication, as KZ trading -SCZ Appeal No. 113 of 1995. 4. Zambia Revenue Authority v Jaye sh Shah (2001} Z. R. 60. 5. Standard Chartered Bank (Z) Pie v John Banda-SCZ Appeal No. 94 of 2015 6. Chikuta vs Chipata Rural Council {1974) ZMSC 26 {8 October 1974). 7. Issac Lungu vs Mbewe Kalikeka -SCZ Appeal No. 114 of 2013. 8. July Danobo (T/A Ju/don Motors v. Chimsoro Appeal No. Farms Limited-SCZ 15 of 2009 9. Hussein Versi, Van Tall Logistics & forwarding Omar Awadh Transport vs Air Sea Clearing -CAZ Appeal No. Limited Limited Limited, & Forwarding 24/2020. J I 2 10. Post Newspapers Limited v Rupiah Bwezani Banda (2009) ZR 254. 11. Beatrice Nyambe vs Barclays Bank (2008} ZR 195. 12. Texaco Limited (2018/HP/2010} v National Institute 2020}. {2020) ZMHC 226 (11 September of Public Administration & 2 Others Legislation referred to: 1. The High Court Rules, Chapter 27 of the Laws of Zambia. 2. The Rules of the Supreme Court 1999 Edition. Other Works: 1. Halsbury's Laws of England, 5th Edition, Vol. 22 Paragraph 92. 2. Arlidge, Eady & Smith, Third Edition on Contempt, London, Sweet & Maxwell 2005 at 892 paragraph 12 1.0 INTRODUCTION 1.1 This is an appeal against the composite Ruling on the Appellants applications, being firstly, an Application To Set Aside Originating Process For Irregularity filed on 23rd March, 2021 and secondly, Notice of Motion to Raise issues Preliminary 2021, delivered Contempt/Committal against on 2ist May, 2021, by Bawa J, under Cause Number process filed on 6th April, 2021/HP/0305 (hereinafter referred to as The Ruling). 2. BACKGROUND 2.1 By way of background, it is noted, that on 19th March 2021, the Plaintiffs in the Court below, commenced an action by filing a Writ of Summons and J I 3 Statement of Claim, full details of which appear at Pages 44 to 52 of the Record of Appeal, claiming the following reliefs: 1) A declaration that the 2nd Defendant and the National Executive Committee led by 2nd Defendant has breached the party Constitution. 2) A declaration that the 2nd Defendant and National Executive Committee elected in 2011 and 2012 respectively only had a 5 year mandate. 3) A declaration that the convention called to be held on the 20th of March, 2021 is illegal and void ab initio. 4) An order of interim injunction to stop the holding of the proposed convention to be held on 20th March, 2021. 5) The Court appoints/makes an Order to appoint an interim committee during the subsistence of this matter. 6) Costs. 7) Any other reliefs which the court shall deem fit to award. 2.2 On the said date, 19th March 2021, the Plaintiffs also applied for an Ex Parte Order of Injunction, placing reliance on averments in their supporting Affidavit and Skeleton Arguments, details of which appear on Pages 58 to 116 of the Record of Appeal. 2.3 The Court below granted the Order of Injunction, ex parte, on 20th March 2021 and ordered that the matter come up for hearing on 26th inter partes, J I 4 March 2021. The Ex Porte Order of Injunction granted by the Court is noted from pages 254/257 of the Record of Appeal. 2.4 Amidst a flurry of activity in this Action, the Plaintiffs, (as they were in the Court below), did on 22 March 2021, file their amended originating process, statement of claim, amended composite affidavit in support of the ex parte summons for an interim injunction, once and without leave of Court, as was noted from pages 140 to 218 of the Record of Appeal. 2.5 On 23 March 2021, the 1st and 2nd Defendants caused to be filed their Notice of Appointment through Counsel and their application to Set Aside the Originating Process for irregularity. These are noted at pages 221 (erroneously numbered 121) to pages 228 of the Record of Appeal. (hereinafter referred to as the first application). 2.6 The Plaintiffs filed their opposing process to the first application and the same has been noted at pages 287 to 308 of the Record of Appeal. 2.7 The Record reveals that the lower Court granted a further Order for leave to issue committal proceedings against the alleged contemnors, on 24th March 2021, on the ex parte application of the Plaintiffs made under Order 52 of the Rules of The Supreme Court2. 2.8 On 6th April 2021, the Defendants filed into Court a Notice of Motion to raise a Preliminary Issue against Process. the Contempt/Committal J I s {Hereinafter referred to as the second application). The application, the supporting Affidavit, being both the Affidavit in Opposition to Notice of Motion for an Order for Committal and in support of the Notice of Motion to raise Preliminary Issue and Skeleton Arguments are noted from pages 309 to 325 of the Record of Appeal. 2.9 A composite Affidavit in Opposition was filed by the Applicants (the Plaintiffs), on 15 April 2021 which is noted at pages 326 to 340 of the Record of Appeal. The i5t Defendant and ist alleged to be filed Contemnor caused her Affidavit in Reply and Skeleton Arguments on 20 April 2021 to the composite opposing Affidavit as seen from pages 341 to 356 of the Record of Appeal. 2.10 The record of proceedings to the in the Court below in as far as it pertains two applications, the subject of the composit e Ruling, are seen from pages 622 to 640 of volume 2 of the Record of Appeal. 2.11 The Ruling, the subject of this Appeal, is seen at pages 10 to 43 of the Record of Appea I. 3.0 DECISION OF THE COURT BELOW 3.1 The Trial Judge considered the two applications before him, the Affidavit evidence and the Parties' arguments respectively. The Lower Court dismissed the first application, to set aside the Originating for Process irregularity, and did pursuant to Order 18 Rule 1 and Order 3 Rule 2 of the J I 6 High Court Rules1, grant leave to the Plaintiffs to amend the Writ of Summons and to rectify the omission within 14 days of the date of the Ruling, failing which the Writ would be set aside for irregularity. The Court also made a costs order against the Plaintiffs. 3.2 With regard to the second application, the Lower Court considered the submissions of both Counsel for the Plaintiffs and the Alleged Contemnors and dealt with the issues raised as presented to the Court under their respective heads set out in the Notice to Raise Preliminary Issues. ,. Whether this Court has jurisdiction to deal with any Orders in the Contempt process in light of pending application to set aside originating process for irregularity. Which if successful affects the jurisdiction of the Court; Having already determined the first issue, and placing reliance on the case of JCN Holdings Limited, Post Newspaper & Mutembo Nchito v the Attorney General1 relied on by the Alleged Contemnors, the lower court agreed with Counsel for the Plaintiffs that the said case being incorrectly cited and relying on the observations made by Justice Mwenda in the case of Wynn Recourses Limited and Sun Yandong vs Siakamwi Chikuba (Sued as Receiver and Manager)2 declined to deal with the argument canvassed. 3.3 The Court noted that the issues raised by the Defendants, inter a/ia, were to do with the issue of non-endorsement of the physical, postal and electronic addresses of the Plaintiffs. The Lower Court was of the view that this was a J I 7 breach of a regulatory rule, breach of which does not go to jurisdiction. The Lower Court ruled that it had jurisdiction to deal with the contempt proceedings. ii. Whether this Court can entertain contempt proceedings against the 3rd, 4th , 5th and 6th Alleged Contemnors who are not parties named in the cause of action commenced by the Plaintiffs/Applicants and who are not persons named in the Ex-Porte Order of interim injunction signed on 20th March, 2021. It was argued by the 3rd to 6th alleged contemnors, that not being Parties named in the cause of action commenced by the Plaintiffs/ Applicants, and not named in the Ex Pa rte Order of Interim Injunction granted on 20th March 2021, they cannot be cited for contempt of court. It was their argument that no application for Joinder was made by the Plaintiffs to join them to the action and that an Order of the Court cannot be against the whole world. In dealing with this ground, the Lower Court referred to the learned authors of Halsbury's Laws of England, Fifth Edition, Vol 22 at 74 paragraph which provides: "A stranger to an action who aids and abets the breach of a Court Order obstructs the course of justice and is guilty of contempt punishable by committal." The lower Court also relied on the text by the learned authors of Arlidge, Eady & Smith on Contempt 2 who stated as follows: J I 8 "Someone who is not a party to civil proceedings in which an Order has been made may assist a party who is so bound to disobey the Order, or perhaps a third party sets out independently to subvert the effect of such an Order, such behavior may well constitute a criminal contempt at common law." In its considered view the lower Court found that the 3rd to 6th Contemnors were rightly cited by the Plaintiffs, to enable the Court to make an enquiry into whether or not there was disobedience of the Ex-Parte Order and dismissed the second issue as being un-meritorious. 3.4 The Lower Court escalated its enquiry to the third issue raised by the defendants being: iii. Whether it is competent to undertake contempt proceedings based entirely on conjecture without any proof of service of the Court process being exhibited anywhere on the Court Record, or in any affidavit. In its consideration of this issue, placed the Court noted that the Plaintiffs reliance on their Affidavit of Service dated 24th March, 2021, in which an email was exhibited as having been sent to the 2nd alleged contemnor serving him with the originating process and the Ex-Porte Order. The Lower Court in analyzing the evidence before the Court, found that such matters to test the veracity of the allegations are best considered in the main contempt proceedings and warranted no further comment by the Court. The Lower J I 9 Court therefore found that the 3rd issue raised by the Alleged Contemnors lacked merit and dismissed it. 3.5 In analyzing the fourth issue raised by the Defendants, namely: iv. That the alleged Plaintiffs/Applicants are not MMD members and have no locus standi in this entire matter. Applying the same rationale as above, the learned Judge agreed with the Plaintiffs that this issue too, should be determined at the trial of the matter and dismissed the fourth ground raised. 3.6 The Lower Court in dismissing the defendants second preliminary awarded application, costs (of this application} to the Plaintiffs. 4. THE APPEAL 4.1 Being dissatisfied with the Ruling of the Court below, the erstwhile filed its Notice of Appeal and Defendants, now The Appellants, Memorandum of Appeal on 31st May 2021 in which it advanced seven (7} grounds of appeal in the following terms: i. The Learned High Court Judge erred in fact and in law when he failed to pronounce himself on the fact that the Plaintiff's (Respondents) irregular originating process nullified the Ex-Porte order granted by the Court which J 110 said Ex-parte order was granted under a defective originating process which went to the jurisdiction of the Court. ii. The Learned High Court Judge misdirected himself when he held that Order 2 Rule 1 of the Rules of the Supreme Court of England (the White book) 1999 Edition was not inapplicable to Zambia when our own laws in the Supreme Court of Zambia in the case of JCN Holdings Limited, Post Newspaper & Mutembo Nchito v The Attorney General {Supreme Court Appeal No. 54 of 2016} clearly gives guidance and lays precedence, which does not warrant us to resort to the use of Order 2 Rule 1 of the Rules of the Supreme Court of England in relation to nullifying proceedings is found. where an irregularity 111. The Learned High Court Judge erred in law and fact when he held that the case of JCN Holdings Limited, Post Newspapers & Mutembo Nchito v The Attorney General was distinguishable from this case when the said case also dealt with breach of procedure and granted no condition or qualification to when a Court will have jurisdiction when a matter is not proper before the Court. iv. The Learned High Court Judge misdirected himself when he held that there is no support for the proposition rule goes to that a breach of a regulatory jurisdiction. v. The Learned on an High Court Judge erred in law and fact when he relied email in the Respondent's Affidavit of service to suggest that the alleged J I 11 contemnors had knowledge of the Ex-Porte Order of Injunction when the Rules of the Court do not permit service via email and when there was no concrete evidence that proved actual service on all the alleged contemnors. v1. The Learned High Court Judge erred in law when he held that the 3rd to 6th alleged contemnors in the Ex­ were covered by the wording "whomsoever" parte Order of interim injunction to impute that the Ex-Porte Order was effective on them. vii. The Learned High Court Judge erred in law and fact when he held that the issue of whether the Respondents have are not MMD members and therefore no locus standi was an issue for trial when the Respondent's failed to counter the said issue, which warranted the Court to make a determination on it as there is no law that prohibits an issue of locus standi to only be determined at the main trial of the case. 5. ARGUMENTS OF THE PARTIES 5.1 The Appellants placed reliance on their Heads of Argument and Arguments in Reply filed on 30th July 2021 and ist April 2022, while the Respondents to the Appeal, have placed reliance on its Heads of Argument filed on 13th September 2021 respectively. 5.2 The arguments canvassed by the Parties respectively are on record and have been appreciated by the Court. We will refer to them in the body of our Judgment, where appropriate. J I 12 5.3 At the hearing, Counsels opted to rely on their heads of argument respectively and Counsel for the Appellant sought to augment their arguments in respect of grounds 5 and 7 relating to the definition of service and the issue of locus of the Parties. 6. DECISION OF THE COURT 6.1 We must at the onset, state our reservation/displeasure in the manner this matter has progressed in the Court below. We are alive to the fact that issues surrounding membership and activities of various Political Parties, may be emotive and highly personal to the Parties. More so, that these matters took place in the period leading up to the General Elections of 2021. It is trite that Counsels are, first and foremost, Officers and of the Court, should be in the forefront of advising their clients on the law and should not be seen 11to partner with their clients," to conduct Party proceedings using, and perhaps misusing, judicial time and resources, both of which are scarce. 6.2 We have noted and reproduced above the seven (7) grounds of appeal (see paragraph 4 above) filed by the Appellants. We propose to deal with them under two (2) broad grounds, relating to each of the two issues that were the subject of the Ruling before the lower Court. 6.3 The Appellant appears to harbor under the mistaken position of the law, that a matter with an alleged irregularity, renders the matter null and void ab initio and further that all steps taken under that matter are automatically J I 13 rendered null and void for want of jurisdiction. that for a It is elementary party to raise issues of jurisdiction and or irregularity, as in casu, that party must move the Court and obtain the necessary orders from the said Court. It cannot simply rely on allegations touching on jurisdiction and or irregularity and then sit on its laurels, waiting for the judicial machinery to be moved by some automated self-destruct process. It is common cause that the Respondents, (the Plaintiffs in the Court below) moved the Court by process filed on 19th March 2021 and obtained an ex Porte Order of Interim Injunction which was granted by the Court below on 20th March 2021. The Respondents conceded their omission to include their physical and email addresses and the Court below ruled that such irregularity did not go to the root of the matter and that the irregularity complained of was amenable to being corrected, on pain of a cost order, which the Court in its Ruling, directed the Party to amend and file its amended Originating process within 14 days of the said Ruling. The issue for our consideration is the position espoused by the Appellants in advancing the argument that the irregular originating process nullified the Ex Porte Order granted by the Court as the said Ex Porte Order was granted under a defective originating process which went to the jurisdiction of the Court. The Appellant has relied on the decision of the Supreme Court in the case of JCN Holdings Limited, Post Newspapers & Mutembo Nchito vs The Attorney General 1 in support of its argument of the that the decision J J 14 Supreme Court renders null any orders made on an irregular process. It quoted the following extract from the said case: "Also it is settled law that if a matter is not properly a court that court before ,, has no jurisdiction to make any orders or grant any remedies. In our considered view, the Appellant appears to have misunderstood the law and procedure, as it relates to jurisdiction vis the arguments on irregularity which are not fatal and are amenable to amendment in the discretion of the Court. The Court below in analyzing this issue, fully addressed its mind to the nature of the irregularity. The Court relied on the decision of the Supreme Court in the case of The Republic of Botswana, Ministry of Works Transport and Communication, Rinceau design Consultants (sued as a firm previously trading as KZ Architects) vs Mitre Limited 3 and placed emphasis of the on the decision Supreme Court in considering whether a rule is mandatory or directory and the consequent effect of its breach. The Supreme Court stated as follows: "As regards whether or not the Rule is Mandatory or directory and therefore discretionary, we wish to refer to Order 2 Rule 1 (1) of the White Book, 1999 Edition Vol 1 and to our decision in Leopold Walford case cited by Mr. Kawanambulu. Order 2 rule 1(1} provides as follows: Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the J I 1s requirements of these rules, whether in respect of time, place, manner, form or content as an irregularity or in any respect the failure shall be treated and shall not nullify the proceedings any step taken in the proceedings or any document, judgment or order herein. And in the Leopold Walford cast at page 205, we said: "As a general rule, breach of regulatory rule is curable and not fatal" The High Court rules, like the English rules are rules of procedure and therefore regulatory and any breach of these rules should be treated as mere irregularity, which is curable." this issue, To further advance we are equally cognizant of the of the decision Supreme Court in the case of Zambia Revenue Authority vs Jayesh Shah where the Court held as follows: "Cases should be decided on their substance and merit. The rules must be followed, but the effect of a breach will not always be fatal if the rule is merely regulatory or directory." 6.4 From the above decisions of the Supreme Court, and in the face of an omission to cite physical and electronic addresses, in its amended Writ of Summons, we are of the considered view that the Court below was correct in arriving at its decision at pages 18 to 21 of the Record of Appeal, that the irregularity complained of was curable and not fatal to the action. We are also on firm ground that the failure to comply to a procedural rule, does not, and did not nullify the proceedings or any step taken therein or any document, judgment or order herein. J I 16 With the greatest of respect to Counsel's submissions, we do not agree that the irregularity in casu, went to the jurisdict ion of the Court. We are of the considered view that the Appellants have lamentably failed to appreciate the distinction made by the Supreme Court in the JCN Holdings case (supra) on matters which go to Jurisdiction and matters which are irregular and amenable to being cured in the discretion of the Court. We are fortified by so stating by the decisio n of the Apex Court in the case of Standard Chartered Bank (Z) Pie vs John Banda5 where Malila JS (as he then was) stated as follows: "In the present case, we note that it was the electronic mail address of the appellant that was omitted from the writ. We also considered the prejudice the respondent claimed he would suffer or was likely to suffer from that omission. We think that rules of court should indeed serve a definitive process and we are not to apply them with a rigid approach without regard whatsoever to the consequences of any delayed rectification of their breach. In cases of breach of rules that do not result in any real or serious prejudice or negative consequences to any party, the court does surely retain the discretion always as to what order would best meet the justice of the situation." In our considered opinion, to arrive at any other conclusion would be to herald the beginning of the end of judicial discretion. J I 17 The Court below correctly exercised its discretion and did distinguish his decision on the irregularity, from the mode of commencement of proceedings, as was the objection tendered in the case of Chikuta vs Chipata Rural Council . In the Chikuta case (supra), the Supreme Court held (with respect to the mode of commencement of action) as follows: " .. .for procedural reasons the appeal must in fact fail. The matter was brought before the court by means of an originating summons ... lt is clear ... that there is no case where there is a choice between commencing an action by a writ of summons or by an origina ting summons .... As the matter was not properly before him the judge had no jurisdiction to make the declarations requested even if he had been so disposed." 6.5 As we have stated, the above is the position at law and all arguments and authorities canvassed on jurisdiction are misplaced in the context of this appeal. It is trite that if a matter is not properly before a court, that Court has no jurisdiction to make any orders or grant any remedies. That was the essence of the decision in the JCN Holdings case. The Appellant appears to want to carve out of a curable irregularity, a position favorable to itself, by its insistence that the Order of Injunction granted was null and void on account of the defective process. As we have stated the decision in the Republic of Botswana 3 case is instructive that the irregularity in itself does not nullify any steps taken in the proceedings. J I 18 We are equally au fait with the Court below and know of no departure from the established decision reached in the case of The Republic of Botswana (supra). 6.6 On the submission itself that the Lower Court misdirected when he applied Court 2 Order 2 rule 1 of the Rules of the Supreme , we are of the considered view, that once again, the Appellants appear to have misapprehended the rationale of the Supreme Court in the case of JCN Holdings (supra), in as far as it relates to matters that are not properly before a Court, viz those that suffer an irregularity, which is curable. Equally are the not relevant, misplaced arguments of the apparent inapplicability of the Rules of the Supreme Court of England in relation to nullifying proceedings where an irregularity is alleged. The Appellants appear to argue that English practice and procedure only applies when there is a lacuna in our rules or practice and procedure. Again, the Appellant has misapprehended the guidance tendered by the Supreme Court in the case of Issac Lungu vs Mbewe Kalikeka . Ironically, and it is noted, that the Appellants themselves called in aid the provisions of Order 2 rule 1 and 2 of the Rules of The Supreme Court2 when it mounted its challenge to set aside the originating process for irregularity. (See pages 221/222 of the Record of Appeal). This flies in the teeth of its own submissions, of the Rules of flawed as they may be, on the inapplicability the Supreme Court in relation to nullifying proceedings where an irregularity is found. The Appellant this cannot have its cake and eat it too. We dismiss J I 19 line of argument in its entirety and in so doing dismiss grounds 1 to 4 of the appeal. 6.7 We will now consider the remaining three grounds of appeal, which relate to the second application before the Lower Court, by Notice of Motion to raise a Preliminary Issue against the Contempt/Committal Process. The Appellant has submitted that the learned Judge erred in law and fact when he placed reliance on an e-mail in the Respondent's Affidavit of Service that to suggest the alleged contemnors had knowledge when the of the Order of Injunction Rules of Court do not permit service via e-mail and in the absence of proof of actual service on the alleged contemnors. In opposing this ground of appeal, the Respondents have placed reliance on Rule 14 (1) of the High Court Rules 1, Statutory Instrument No. 28 of 2012 as being adequate proof of service and have further submitted that the said Statutory Instrument defines 'ID' under Rule 2 to mean "a unique user identification", in support of their submission that the learned Judge cannot be faulted for his finding that the Respondents and the alleged contemnors were duly served. For a start, we must frown on the complete mistake in referencing this Rule, and on which this part of the Appeal hinges. The Statutory Instrument is No. 27 of 2012 and the rule referred to, ought to read rule 13(1) as opposed to rule 14 (1), and the definition of 'ID' is not found at Rule 2 but rather in Rule 1 of Order LIV on Electronic Filing, being the High Court J I 20 (Amendment) Rules, 2012, Statutory Instrument No. 27 of 2012. It is trite and counsel are reminded that carelessness in referencing or inaccurate references and citation will lie to the detriment of the party seeking to rely on it. The Supreme Court has on a number of occasions, cautioned parties and their advocates on the need to lodge complete records of appeal and the consequences of not doing so. The Court cited the case of July Danobo (T / A Juldan Motors v. Chimsoro Farms Limited8 where the Supreme Court invoked rule 68(2) of the Rules of the Supreme Court and dismissed the appeal as the record of appeal was incomplete. 6.8 The Court below considered an affidavit of service dated 24th March 2021, in which the Appellants exhibited an e-mail as having been sent to the 2nd alleged contemnor, serving him with the originating process and the ex-parte Order. The Court below was of the opinion that the evidence appeared to prove prima facie, proof of service of the Order and knowledge of its existence by the alleged contemnors. We have combed the two volumes of the Record of Appeal and cannot find the Order issued by the Court below, granting leave to issue a notice of motion for committal proceedings against the alleged contemnors, other than the record of transcript entitled "High Court proceedings" and numbered 56 in the Index to Record of Appeal. J I 21 6.9 We escalate our enquiry into the fundamental issue of due process as to personal service. The law is clear as per Order 52 rule 3 of the Rules of the Supreme Court2 as to the need for personal service. We have in the past considered the issue of personal service in the case of Hussein Versi, Van Tall Logistics & forwarding Limited vs Air Sea Clearing & Forwarding Limited, Omar Awadh Transport Limited9 wherein this Court stated as follows: "We are equally of the view that an order of committal of a person for disobedience to an order requiring him to do a given act within a given time as in casu will not be directed unless a copy of that order with the proper endorsement has been personally served upon him in due time. The fact that a person is aware of the order or that it was made in court when he was present or that his lawyers are aware of it is not sufficient to dispense with service of the order. In as much as it is in the public interest for strict obedience to a court judgment/order, proper court processes must be followed in enforcing them particularly those relating to an order of contempt committal against persons/directors etc. The conditions precedent to the enforcement of a judgment or order by order of committal or sequestration must be met." 6.10 We are also alive to the guidance of the Supreme Court in the case of Post Newspapers Limited vs Rupiah Bwezani Banda 10 , that before a Court can grant leave to commence committal proceedings, the affidavit in support of the application for leave, should show that the applicant has a prima facie J I 22 case for the court to grant leave. A similar principle was pronounced in the case of Beatrice Nyambe vs Barclays Bank 11 and the guidance to trial before courts to ensure service dealing with applications for contempt of court. Similarly in the case of Texaco Limited v National Institute of Public & 2 Others12 Administration . The Court was guided by the holding in the case of Beatrice Nyambe11 {supra) to the effect that: "Contempt of court quite apart from being concerned with the authority and dignity of the Court, also ultimately deals with the liberty of the individual. The consequences of disobeying Court Orders whether properly or improperly obtained are very serious. It is for this reason that the Court must exercise great care when dealing with applications relating to contempt It is of court. imperative that the rules are strictly followed." We refer to Halsbury's laws of England 4th edition Reissue, vol 9 {1) para 465 where the learned authors explain as follows: " ... the power to order committal for civil contempt is a power to be exercised with great care. The court will only punish disobedience to an order of the court, or non-compliance with an undertaking, if satisfied that the terms of the order or undertaking are clear and unambiguous, that the defendant has proper notice of the terms and that a breach of the order or undertaking has been proved beyond reasonable doubt. J I 23 6.11 The law on this is settled and service is required to be personal We service. refer to the provisions of Order 65 Rule 2(3) and Order 45 rule 7 (9) of the Rules of the Supreme Court2 on documents of which personal service 1s required. It is trite that orders, obedience to which may be enforced by committal require or sequestration personal service. 6.12 From a perusal of the record, we are not satisfied that the Respondents Affidavit disclosed information to discharge the prima facie burden and beyond reasonable doubt. We have noted from the uncontested facts that the ex parte Order of Injunction (injuncting the holding of the MMD Convention scheduled for 20 March 2021), was granted, ex parte on 20th March 2021. It is conceivable that the Convention the subject of the Action, may have already taken place at the date and time the Ex parte Order of Injunction was granted and or served. The Record of proceedings from the Court below, at page 626/627 of the Record of Appeal shows that the Respondents did on 24th March 2021, present their application for leave to issue a Notice of Motion for committal proceedings. We have already noted that the lower court accepted as proof of service, effected by email as being prima facie evidence, of the of not only service Order (of Injunction}, but knowledge of its existence by the alleged contemnors. J I 24 We have no hesitation in finding that the lower Court erred in law and fact by relying on contested affidavit evidence on the aspect of service and imputing knowledge on the part of the alleged contemnors. For the reasons above, we find merit in this ground of appeal and uphold it accordingly. Having arrived at this conclusion, the arguments advanced in grounds 6 & 7 will not be considered. 7. CONCLUSION 7.1 We therefore dismiss the Appeal on grounds numbered 1 to 4 and uphold the Appeal on ground 5. For the avoidance of doubt, we find merit in the Ruling of the Court below in as far as it relates to the first application and uphold it. With regards the second application, we find that the lower Court erred in granting leave to issue a Notice of Motion for committal proceedings as it is tainted and set it aside. with irregularity Consequently, this ground has merit and accordingly succeeds. J I 2s , 7.2 In conclusion, the Appellant being successful on one ground and unsuccessful in the other, each party shall bear its own costs. J. CH HI COURT OF APPEAL JUDGE � B. M. MAJULA COURT OF APPEAL JUDGE A. N. PATEL, SC COURT OF APPEAL JUDGE J I 26