Nayeja v Nayeja (Matrimonial Cause 23 of 2008) [2014] MWHC 505 (6 November 2014)

Felord Nayeja v Mary Nayeya Kenyatta Nyirenda, J. JUDICIARY ~ Fy f IN THE HIGH COURT OF MALAWI ee, PRINCIPAL REGISTRY MATRIMONIAL CAUSE NO. 23 OF 2008 BETWEEN: FELORD NAYEUJA .....cccccscsceccccscescsccnsscsceccecsceccececscessescecs PLAINTIFF -AND- MARY NAYEYA ....icccececccscecsccssscesccscescscceccessescecesceeseess DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Kansichi, of Counsel, for the Plaintiff Ms. Emily Chimang’anga, the official court interpreter Date of Hearing: 31% October 2014 Date of Judgment: 6 November 2014 ORDER Kenyatta Nyirenda, J. This was the Plaintiffs application, made under Order 52 of the Rules of the Supreme Court (RSC) for an order of committal of the Defendant to prison for contempt of court. The facts, in a nutshell, are that the Plaintiff and the Defendant were husband and wife until 15" May 2008 when their marriage was dissolved by the Thyolo Magistrate Court. The matter was then remitted to the High Court for the distribution of the matrimonial property, which consisted of four houses located at Bvumbwe in Thyolo District. By its judgment dated 28" May 2010, the High Court ordered the Defendant to surrender three of the four houses to the Plaintiff within one month. After being 1 Felord Nayeja v Mary Nayeya Kenyatta Nyirenda, J. served with the judgment the Defendant commenced appeal proceedings and the same have yet to be concluded. Meanwhile, on 28" July 2011, the Plaintiff was granted leave to move for an order of Committal for Contempt of Court and 1*' November 2011 was appointed the date of hearing of the application. The Notice of Motion for Warrant of Committal bearing the set hearing date of 1‘ November 2011 was personally served on the Defendant. It would appear the committal proceedings failed to take place as there is no record of what transpired on this day. The case lay in abeyance until 12'" March 2014 when the Plaintiff filed a notice of adjournment and 31‘ October, 2014 was appointed for hearing. On the set hearing date of 31‘' October, 2014, neither the Defendant nor his legal practitioners, Chief Legal Aid Advocate Chambers, showed up for hearing. It is trite that no order will normally be issued for committal of a person unless- (a) he has been personally served with the order, disobedience to which is said to constitute the contempt; and (b)the prosecutor gives the person sought to be committed the fullest notice that an application is being made for his committal: see R. v. Pophar Borough Council (No.2) [1922] 1 K. B. 95. It is also the position at law that where a new or adjourned date is fixed for hearing of the notice of motion for warrant of committal, personal service ought also to be effected of notification of the date: see Phonographic Performance Ltd. V. Tsang (1985) 82 L. S. Gaz. 2331, C. A. In the present case, there is no evidence that (a) there was personal service on the Defendant of notification of the hearing set for 31“ October 2014 and (b) personal service had been ordered to be dispensed with. In the premises, I have no option but to dismiss this application. Pronounced in Court this 6" day of November 2014 at Blantyre in the Republic of Malawi. wo. Kenyatta Nyirenda_ JUDGE