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

The case involves a committal application by Felord Nayeja against Mary Nayeja for contempt of court. The parties' marriage was dissolved on May 15, 2008, and the High Court ordered Mary to surrender three of four houses in Bvumbwe, Thyolo District by May 28, 2010. Mary appealed this decision, which remains unresolved. The committal application was initially set for November 1, 2011, but no record exists of the proceedings. The case was adjourned to October 31, 2014, but Mary failed to appear. The judge dismissed the application due to lack of personal service on the new hearing date and absence of a dispensation from service.

The court dismissed the Plaintiff's application for committal of the Defendant to prison for contempt of court. The dismissal was based on the lack of evidence that the Defendant was personally served with the notification of the hearing set for 31st October 2014 and that personal service had been ordered to be dispensed with. Legal precedents cited include R. v. Pophar Borough Council (No.2) [1922] 1 K.B. 95 and Phonographic Performance Ltd. V. Tsang (1985) 82 L.S. Gaz. 2331, C.A., which emphasize the necessity of personal service for committal proceedings.

The application for committal of the Defendant to prison for contempt of court was dismissed. The court found no evidence of personal service to the Defendant regarding the 31st October 2014 hearing and no order to dispense with such service.

The court held that the Plaintiff failed to meet the burden of proving personal service of the committal hearing notification on the Defendant. Under established law, a committal order cannot issue without evidence that the party was either personally served with the order or had notice of the hearing date. The judgment references R. v. Pophar Borough Council [1922] and Phonographic Performance Ltd. V. Tsang (1985) to reinforce this principle.

Kenyatta Nyirenda