Shuko Willie Chunga v Nukwase Chunga and Ors (2022/HPF/D053) (31 March 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2022/HPF/D053 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Divorce Jurisdiction) BETWEEN: SHUKO WILLIE CHUNGA PETITIONER AND NUKWASE HILDA MWANZA CHUNGA ALLEGED CONTEMNOR SIFISO KHUMALO 1 ST CO-RESPONDENT EDWARD SAMPA CO-RESPONDENT 2ND BEFORE THE HONOURABLE MR. JUSTICE W. S MWEEMBA AT LUSAKA. For the Petitioner: Mr. K. Siyanga -Messrs Paul Nora Advocates. For the Alleged Contemnor: Mr. W. Kayope, Ms M. Msundwe & N. Chalamiti - Messrs Simeza Sangwa & Associates. For the 1st Co-Respondent: No Appearance For the 2nd Co-Respondent: No Appearance RULING LEGISLATION REFFERED TO: 1. The Rules of the Supreme Court of England 1999 Ed. (Whitebook). CASE LAW: 1. Beatrice Nyambe v Barclays Bank Zambia Plc (2008) ZR Vol 2 p.195 2. Harmsworth v Harmsworth (1987) 3 All ER 816. 3. Bank of Zambia v Aaron Chungu, Access Finance Service Limited & Access Leasing Limited (2008) 1 ZR 81. 4. Law Association of Zambia v Tutwa Ngulube Petition No. 13 [ 2019 (Unreported} Ruling dated 19th February 2020. 5. Sitima Tembo v National Council for Scientific Research (1988 - 1989} ZR 4. 6. Versi and Another v Airsea Clearing and Forwarding Limited and Another (2021) ZMCA 115. Rl 7. The Attorney General v Nigel Mutuna & Ors (Appeal No 230 of 2013) ZMSC 361 (28 February, 2019). 8. The Attorney General v. Times Newspapers Limited {1974] A.C. 273; 9. Balogh v Crown Court at St Albans {1974/ 3 All E.R. 238; 10. Kundiona v. the People {1993 - 1994} Z.R 59. 11. Hadkinson v. Hadkinson (1952) 2 All ER 567. Introduction This is a Ruling on the Alleged Contemnor's Notice of Motion to set aside committal proceedings for irregularity. The application is premised on Order 2 Rule 2 of the Rules of Supreme Court of England 1965 (Whitebook). The Notice of Motion is premised on the following grounds: (i) The notice of motion does not set out the conduct of the Alleged Contemnor which is deemed to constitute contempt of Court; (ii) The Order dated 21st November 2 022, does not endorse a penal notice; and {iii) The said Order, was not personally served on the Alleged Contemnor. Skeleton Arguments The Application is supported by Skeleton Arguments filed into Court on 30th October, 2024. On the first ground where it had been submitted that the Notice of Motion did not set out the conduct deemed to constitute the contempt, Counsel for the Respondent began by referring this Court to Order 52 of the Rules of the Supreme Court, 1999 Edition (Whitebook) as the law that regulated committal proceedings in this jurisdiction. He submitted that this law conferred this Court with the inherent jurisdiction to commit persons for contempt of court for two purposes, namely- (a) to enforce obedience to court orders and judgments or generally decisions of the Court; and R2 (b) to safeguard the court's authority and protect the administration of justice from improper interference and abuse. However, he hastened to point out that due to the grave impact that committal proceedings had on the liberty of an alleged contemnor, a party instituting committal proceeding was under an obligation to strictly adhere to the procedural rules in conducting committal proceedings as outlined in Order 52 of the Rules of the Supreme Court (RSC). It was Counsel's submission that the failure to follow the said rules was fatal and resulted in the setting aside of the proceedings. Counsel also brought to my attention, the case of BEATRICE NYAMBE V BARCLAYS BANK ZAMBIA PLC [l] where the following sentiments on this issue were echoed. "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 of court. It is therefore imperative that the rules are strictly followed.'' It is argued that in light of the foregoing as well as the procedural irregularities in the contempt proceedings instituted by the Petitioner, the Alleged Contemnor has now filed a Notice of Motion to set aside the committal proceedings on the grounds of irregularity. Counsel went on to submit that Order 52 Rule 4 of the RSC set out the requirements for an order of committal by providing the following - Application to Court other than Divisional Court R3 (1} Where an application for an order of committal may be made to a Court other than a Divisional Court, the application must be made by motion and be supported by an affidavit. (2} Subject to paragraph 3, the notice of motion stating the grounds of the application and accompanied by a copy of the affidavit in support of the application, must be served personally on the person sought to be committed. (3} Without prejudice to its powers under Order 65, rule 4, the Court may dispense with service of the notice of motion under this rule if it thinks it just to do so. (4) This role does not apply to proceedings brought before a single judge by virtue of Order 64, ntle 4. Counsel further submitted that according to this rule, an application for an order of committal must be made by notice of motion and supported by an affidavit whilst Order 52 Rule 4(2) addressed the content of the notice of motion and made it a mandatory requirement that the grounds for the application for committal be included. It is contended that the motion must state the grounds for the application or the grounds upon which one is to be committed to prison. It is further contended that in this case, the Notice of Motion filed did not contain any grounds for the application for committal of the Alleged Contemnor to prison contrary to the rules which state that the inclusion of the grounds for the application for committal in the motion is mandatory. It is argued that where the grounds have been given, they must be clear so that the person alleged to be in contempt can know exactly what is alleged against them. The person accused of contempt of court must have a clear picture of the allegations they have to confront before the Court. It is reiterated that the Notice of Motion herein does not meet the required standard. In making this submission, Counsel sought credence from the case of HARMSWORTH V HARMSWORTH [2] where the Court outlined the test to R4 be followed in determining whether the notice or statement meets the requirements of Order 52 Rule 2 of the RSC. The Court stated as followsnso the test is, does the notice give the person alleged to be in contempt enough information to enable him to meet the charge? In satisfying this test it is clear that in a suitable case if lengthy particulars are needed, they may be included in a schedule or other addendum either at the foot of the notice or attached to the notice so as to form part of the notice rather than being set out in the body of the notice itself. But a reference in the notice to a wholly separate document for particulars that ought to be in the notice seems to me to be a quite different matter. I do not see how such a reference can cure what otherwise would be a deficiency in the notice. As I read the rules of court and as I understand the decision in the Chiltern case the rules require that the notice itself must contain certain basic information. That information is required to be available to the respondent to the application from within the four comers of the notice itself. From the notice itself, the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged. A fortiori in my view, where the document referred to is an affidavit, which does not set out particulars in an itemised form, but which leaves the respondent to the committal application to extract and cull for himself from an historical narrative in the affidavi.t relevant dates and times and so forth and to work out for himself the precise number of breaches being alleged and the occasions on which they took place. n Counsel submitted that in the Harmsworth case cited above, the Court said that it was not enough that details of the alleged breaches were contained in an affidavit but that the details of the breaches had to be found within the RS four corners of the notice of motion. According to Counsel, the Court said that- ''I do not think, therefore, that if there are deficiencies in the notice issued on 22 June those deficiencies should be regarded as having been cured by reason of the references in para 1 to the affidavit attached to the notice and, in para 2J to the affidavit accompanying the notice. " Counsel also cited the Supreme Court case of BANK OF ZAMBIA V AARON CHUNGU, ACCESS FINANCE SERVICE LIMITED AND ACCESS LEASING LIMITED [3] which summed up the effect of failure to include the grounds of the contempt in the notice of motion by stating thatnEqually, the motion for committal for contempt on the face of it, did not also comply with the provisions of Order 52 Rule 4 (2) RSC as it did not state on the face of it the grounds of the application. The motion did not specify with sufficient particularity the acts that constituted contempt. In the case of Jelsen, the motion merely alleged that the Court's Order had been broken and gave no particulars whatsoever. When it came up for hearing, the Judge at the outset dismissed the motion because it did not comply with Order 52, Rule 4. (See also Chiltern District Council v Keane. For the foregoing reasons, ground two of appeal is also allowed.'' It is further argued that the need for the notice of motion to particularize the grounds for seeking committal to prison for contempt of any person was considered by the Constitutional Court in the case of LAW ASSOCIATION OF ZAMBIA V TUTWA NGULUBE [4] where it held that- "We have perused the impugned notice of motion which essentially states that the Respondent published an audio recording on various social media platforms on the proceedings in the main matter. This R6 is followed by the listing of the four grounds of the application. It is thus clear that although the notice of motion makes mention of an audio recording, it does not specify the actual words uttered that are alleged to be contemptuous. The specific words uttered are contained in the Applicant's affidavit. The explanatory note No. 52/4/3 on the grounds of the application clearly stipulates in part that: The notice of motion must state exactly what the alleged contemnor has done or omitted to do which constitutes a contempt ofc ourt with sufficient particularity to enable him to meet the charge. The necessary information must be given in the notice itself; if lengthy particulars are required it is permissible to include them in a schedule or addendum to the notice, provided that they form part of the notice itself; it is not permissible to refer in the notice to an affidavit or other separate document for particulars which ought to be in the notice. This explanatory note is clear that the particulars of what is alleged to have constituted contempt must be given in the notice of motion itself and where it is lengthy, it should be placed in the schedule or addendum to the notice. It is further categorical that it is not permissible to refer in the notice to an affidavit or other separate documents for the said particulars. Counsel argued that this is for good reason because committal proceedings are quasi criminal proceedings and can culminate in severe sanctions including imprisonment. Hence, there are strict requirements to ensure that the alleged contemnor is put on proper notice of the case against him and such procedural rules must be strictly complied with. R7 The notice of motion does not state the alleged contemptuous words but only makes reference to an audio recording. The Applicant has argued based on the case of Bank of Zambia v Aaron Chungu and 2 Ors that a sensible reading of the notice of motion by a person with the background knowledge of the proceedings would leave no doubt of the breaches alleged. This argument is apparently based on the remarks by Sir John Donaldson Mr in the case of Chiltern District Council v Keanne cited in the Bank of Zambia case wherein it was stated: We have considered the Applicant's argument. The notice of motion states that the Respondent should be committed to prison ''for his several contempts in making and publishing various statements on the said audio recording. " The question is; can this statement leave no doubts of the breaches alleged to one who has background knowledge in the absence of sufficient particulars? The answer is no. this does not provide sufficient particulars of the words uttered which were alleged to be contemptuous. In the Keane case it was stated that where the particulars cover a wide range of activities or issues, it must be specified whether the breach covers all or some and if so, which one of them. In this case, the Applicant in alleging several contempt in the audio recording was required to particularise the statements to enable the Respondent meet the charge and not be in doubt as to the specific breaches alleged. The Applicant also had the option of attaching a schedule or addendum to the notice of motion to satisfy this requirement but did not do so. As already stated above, the serious nature of contempt proceedings entails that the rules of procedure must be applied strictly, which was not done in this case. We accordingly find that the notice of motion lacks sufficient particularity contrary to the requirements of Order 52 rule 4 of the White Book." RB The conclusion of the Court at page 17 was also relied upon. It was stated that: "Hence, what falls to be determined is whether or not this defect is fatal. In the persuasive case of Bank of Zambia v Aaron Chungu & 2 Ors, the Supreme Court dismissed an application for committal proceedings against Dr. Caleb Fundanga, in his capacity as Governor and Chairman of the Bank of Zambia for the notice of motion being defective for lack of specifics, in part. The cases of Harmsworth v Harmsworth and Jelsen (Estates) Ltd Harvey took the same approach of dismissing motions after finding insufficient particulars. These persuasive authorities lend support to the position that this defect is fatal. We endorse this position. It follows that the defect in this current case is fatal." Based on this authority, Counsel submits that in the present case, what is in issue is the Ex-parte Order granting access to the children of the family dated 21st November 2022, (Hereinafter referred to as "the Order") which reads as follows: UPON READING the Affidavit in Support of this application deposed to by one SHUKO CHUNGA.filed herein. AND UPON HEARING Counsel for the Petitioner. IT IS HEREBY ORDERED and DIRECTED that the Applicant be and is hereby granted an Order of Access to the Children of the Family during weekends until the Application for an interim Order of Custody has been determined, Dated at Lusaka this 21st day of November 2022. It is argued that the Notice of Motion filed by the Petitioner does not state how the Alleged Contemnor breached the said Order contrary to what is stated in R9 the cases of Harmsworth v Harmsworth as well as that of Bank of Zambia v Aaron Chungu, that the notice of motion must contain certain basic information. That information must be gleaned by the Alleged Contemnor within its four corners. From the Notice of Motion, the Alleged Contemnor should be adequately informed about the breaches alleged to have been committed. It is contended that it is not the duty of the Alleged Contemnor to extract and pick from the Ex-parte Order dated 21st November 2022, and work out the precise nature of breaches and the exact dates when they were allegedly committed. It is further argued that it is the responsibility of the Petitioner to set out in the notice of motion what the Alleged Contemnor was expected to do or not to do by virtue of the order dated 21st November 2022, and what she did in breach of that order. According to Counsel, there is nothing in the notice of motion, which provided such information. Moreover, that it is the Petitioner's duty to establish the link between the Order, and particularize how the Alleged Contemnor allegedly willfully refused to allow the Petitioner access to the children of the family thereby breaching the Order of this Court within the Notice of Motion in order to avoid speculation. It is argued that the statement referred in the notice of motion could not pass for grounds as required by Order 52 Rule 4 of the RSC. The next ground is that there was no penal notice endorsed on the order. Counsel for the Respondent submitted that the Order did not comply with the requirements of Order 45 Rule 7 (4) of the RSC which provides as followsThere must prominently displayed on the front of the copy of an order served under this le, a warning to the person who the copy ni is served that disobedience to the order would be a contempt of court punishable by imprisonment or (in the case of an order requiring a RlO body corporate to do or abstain from doing an act} punishable by sequestration of the assets of the body corporate and by imprisonment of any individual responsible. It is argued that this provision is couched in succinct terms and requires every Order to clearly display a warning to the person who is served, that disobedience to the said order would be contempt of Court punishable by imprisonment on its face. However, a glance at the Order, shows that there is no penal notice. On this basis, Counsel argued that this omission was a blatant disregard of the condition precedent for the enforcement of any order envisaged under 45 Rule 7 (4) of the RSC. He also drew my attention to the sentiments of the learned authors of Gerlis, S. Stephen M Houghlin, Paula (2001) (1999} Ctvi.l Procedure where a penal notice is defined as followsA penal notice is a warning endorsed on a Court Order, notifying the recipient of liability to committal to prison or to pay a fine for breach of the Order. It is further argued that it is undeniable that the face of the Order does not have any penal notice and this failure to comply with the requirements of Order 45 Rule 7 (4) of the RSC is fatal to the subsequent committal proceedings. Counsel premised this argument on the Supreme Court's case of SITIMA TEMBO V NATIONAL COUNCIL FOR SCIENTIFIC RESEARCH [5] where the Supreme Court held as follows- "Order 45 Rule 7(4} provides that it is necessary for a written notice of an injunction to be endorsed with a penal notice, and in my view the exceptions referred to in Note 7 to the Rule apply only when there has been insufficient time to prepare a written notice of injunction. Once a written notice has been prepared it must contain a penal Rll notice in accordance with Ru le 7(4) in order to make a breach of the injunction the subject of an order of committal. To hold otherwise would be to render the provision requiring a penal notice valueless, in that all injunctions by their very nature are matters of urgency, and parties wishing to enforce injunctions would in all cases be able to avoid the necessity for a penal notice by relying on verbal notice. As the applicant in this case did in fact have time to draw a written order, and, as such order did not contain a penal notice as required, the application for an order of committal is refused." Counsel also brought to my attention the Court of Appeal case of VERSI AND ANOTHER V AIRSEA CLEARING AND FORWARDING LIMITED AND ANOTHER [6] which dealt with Order 45 Rule 7 of the RSC and stated as follows- ~'We are however of the firm view that the court has no such discretion to dispense with the penal notice where the judgment/order, as in case, requires the person to do an act. The court has no discretion to dispense with the requirement for the display on the front of the copy of the order in a prominent manner warning that disobedience would be a contempt of court punishable with imprisonment." In light of the foregoing, it is submitted that the failure by the Petitioner to endorse a penal notice on the Order to warn the Alleged Contemnor on the possibility of committal in the event that the Order was disobeyed, was fatal to these committal proceedings. On this basis, this Court was implored to set aside the committal proceedings against the Alleged Conternnor. On the third ground it is submitted that the order was not personally served on the alleged c:ontemnor. It is argued that these committal proceedings should be set aside for irregularity due to failure to satisfy an essential R12 condition precedent, which is personal service of the order alleged to have been breached by the Alleged Contemnor contrary to Order 45 Rule 7 (2} (a) and (b} of the RSC. Counsel recounted Order 45 Rule 7 (2) (a) and (b} of the RSC which provides as followsSubject to Order 24, rule 16 (3), Order 26, rule 6 (3)1 and paragraphs (6) and (7) of this rule, an order shall not be enforced under n.tle 5 unless- (a} a copy of the order has been served personally on the person required to do or abstain from doing the act in question, and (b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act. .. It is further argued that the Editorial Notes of Order 45 Rule 7 (2} (a} and (b) ofR SC state that the rule makes explicit the conditions precedent to the enforcement of a judgment or order by order of committal under the rule by specifying fl) the requisite document (s} to be served; (2) the time within which such document (s} must be served; (3) the person on whom such document (s} must be served; and (4} the terms of the penal notice to be endorsed. It is contended that it is a condition precedent that for an order to be enforced in accordance with Rule 5 of Order 45 of the RSC, such order must be served personally on the person required to do or abstain from doing the act. Similarly, the Explanatory Note under Order 52/3/1 of the RSC tagged 'personal service' indicated that no order would normally be issued for the committal of a person unless he has been personally served with the order disobedience to which is said to constitute the contempt. .. R13 According to Counsel in the case of VERSI AND ANOTHER V AIRSEA CLEARING AND FORWARDING LIMITED AND ANOTHER [6] it was held that it is trite that the provisions of Order 45 Rule (SJ 1 of RSC must be read together with Rule 7. Enforcement cannot be obtained unless a copy of the order is served personally on the person in default. .. 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 the order or that it was made is not sufficient to dispense with service of the Order. It is further argued that in this case the committal proceedings were irregular because the alleged order had not been personally served on the alleged contemnor and such failure to personally serve the order was fatal and rendered all subsequent enforcement proceedings anchored on the order a nullity. Counsel concluded his arguments on this point by referring to Order 10 Rule 6 of the High Court Rules, which defines personal service and highlights its importance. In an overall conclusion of the skeleton arguments Counsel argued that the committal proceedings before this Court were tainted with several irregularities that warranted this Court to set aside the proceedings. Counsel for the Petitioner also filed skeleton arguments to oppose the Notice of Motion to set aside the Committal Proceedings on account of Irregularity. Counsel began his arguments by submitting that although it was argued that the Notice of Motion of 8th of October 2024 filed by the Petitioner did not disclose the alleged misconduct committed, this argument was flawed given R14 that the Notice of Motion clearly showed the alleged misconduct and was reproduced as follows: "TAKE NOTICE that the High Court will be moved before MR. JUSTICE W. S MWEEMBA on the..... day of..... 2024 at hours or so soon thereafter as Counsel can be heard on behalf of the above - named Petitioner for an order that HILDAH NUKWASE being the named Alleged Contemnor/ Respondent herein be committed to prison for his contempt of the Court by willfully refusing and neglecting to follow the orders of this Honourable Court to grant access of the children to the named Petitioner and by which such actions are in willful disobedience of the Orders of Hon. Mr. Justice W. S Mweemba dated the 21st day of November 2024 made in this action." It is further argued that the Court would also note from all accompanying documents that what was being alleged in this matter is that the Alleged Contemnor had not been giving access of the children to the Petitioner and this was the ground upon which this application was made before this Court. The said ground and particulars shown above had clearly been stated or set out in the Notice of Motion as required by Order 52 Rule 4 (1) & (2) ofR ules of the Supreme of England 1999 Edition. Counsel also argued that the purpose of Order 52 Rule 4 (2) above was to simply give sufficient notice and information of what was being alleged to have been committed by an Alleged Contemnor. In this case, the Notice of Motion dated 8th October 2024 had clearly set out the particulars and the ground upon which these proceedings must proceed. It is therefore argued that the issue which had been raised by the Alleged Contemnor was neither here nor there and this Court was urged to dismiss it. Moreover, that it was in the interest of justice that matters were heard on merit rather than on procedural technicalities as required by the Constitution Rl5 under Article 118 (2) {e) of the Constitution of Zambia (Amendment) No. 2 of 2016 which provides as follows: "In exercising Judicial authority, the courts shall be guided by the following principles: "Justice shall be administered without undue regard and to procedural technicalities" Regarding the argument of Endorsement of the Penal Notice on the Order, Counsel for the Applicant argued that indeed there was a requirement for the Court Order to prominently display the Penal Notice as provided under Order 45 Rule 7(4) of the Rules of the Supreme Court of England, he, however, wished to submit that the said Order 45 Rule 7 as cited above, did not end there. That Order 45 Rule 7(7) Of The RSC gave this Court the discretion to dispense with the requirement for the endorsement of a penal notice for a case such as this where the breached order was ordering the Alleged Contemnor to abstain from doing something. The said Order provided as follows: "The Court has a discretion under o. 45 r. 76 to dispense with the failure to incorporate a penal notice in a judgment or order requiring a person to abstain from doing an act but has no such discretion to dispense with the penal notice where the Judgment or order requires the person to do an act." It is also argued that the Order was issued by this Court on the basis that the Alleged Contemnor was denying the Petitioner access and custody to the children. In other words, this Court restrained the Alleged Contemnor from denying access to the Petitioner and therefore, considering the nature of the order, this Court had the power to use its discretion to dispense with the requirement for the endorsement of a penal notice. R16 This argument was substantiated by the case of ATTORNEY GENERAL v. NIGEL MUTUNA AND ANOR (7) which was an appeal on the question of whether a party who had not endorsed a penal notice on a court's order could have recourse to an order of committal as a way of enforcement. The Supreme Court dismissed the appeal and upheld the decision of the High Court that the Court had the power to use its discretion to dispense with the penal notice. In any event it is argued that the issue came too late in the day as this Court has already granted an order for leave for the commencement of contempt proceedings and the Petitioner had already filed the Notice of Motion. On the third ground of dispensing with service of the court order> it is submitted that this also crune too late in the day as this Court has already granted an order for leave for the commencement of contempt proceedings and that the Petitioner had already filed the Notice of Motion. That this issue herein ought to have been raised at the leave stage, however, since leave has already been granted and the Notice of Motion has already been filed into Court, it would be incompetent for the Court to determine the issue now. It is also argued that while Order 45 Rule 7 (2} (a} and (b) of the RSC placed a requirement for personal service, it is their submission that the provision only applied where the breach was one requiring a party to do an act and not to prevent one from doing an act. It is contended that according to Order 45 Rule 7 (6) and (7) of the RSC, An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule, if the Court is satisfied that pending such service, the person against whom or against whose property is sought to enforce the order has had notice thereof either -(a) by being present when the R17 order was made, or (b) by being notified of the terms of the order, whether by telephone, telegram or otherwise. It is further submitted that Order 45 Rule 7 (7) oft he Rules oft he Supreme Court of England gives the Court wide powers to dispense with the service of the copy of the order and allow contempt proceedings to proceed. Without prejudice to its powers under Order 65 Rule 4, the Court may dispense with service of a copy of an order under this rule if it thinks it just to do so. This Court was also invited to consider how service should be done by a practitioner to a party who is duly represented by another practitioner in this jurisdiction before considering the provisions of the Whitebook. It is argued that according to Rule 37(3) of the Legal Practitioners' Rules communication is prohibited directly with a party who is represented by counsel. Thus, the service of the Court Order on the Alleged Contemnor's lawyer complied with this principle, ensuring proper adherence to the procedural rules and ethical obligations. It is submitted that the Record will show that the Alleged Contemnor was duly served with the Order dated 21st of November 2022 through her Advocates which service was duly aclrnowledged. Thus the service of the Court Order on the Alleged Contemnor's advocates constituted proper and sufficient service under the law. Counsel for the Petitioner also made submissions on the rationale for contempt of court. It was argued that the Petitioner had commenced these proceedings to ensure that the authority of this Court was not undermined and he relied on the case of THE ATTORNEY GENERAL V. TIMES NEWSPAPERS LIMITED (8] where the rationale underlying Contempt jurisdiction was explained in the following terms by Lord Morrison: "In an ordered community, Courts are established for the pacific settlement of disputes, and for the maintenance of law and order. In Rl8 the general interest of the community, it is imperative that the authority of the Court should not be imperiled, and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed, it is not because those charged with the responsibilities of administering Justice are concerned for their dignity; it is because the very stntcture of ordered life is at risk if the recognized Courts of the land are so flouted, and the authority wanes and is supplanted." Counsel also relied on the case of BALOGH v. CROWN COURT AT ST ALBANS (9], on Page 288, he stated as follows: "This power of summary punishment is a great power but it is a necessary power. It is given so as to maintain the dignity, and authority of the judge and to ensure a fair trial. It is to be exercised by thejudge of his own motion only when it is urgent, and imperative to act immediately- so as to maintain the authority ofthe Court to prevent disorder - to enable witnesses to be free from fear - and jurors from being improperly influenced and the like. It is of course to be exercised with scrupulous care, and only, when the case is clear and beyond reasonable doubt." Counsel also cited the case of KUNDIONA V THE PEOPLE [10], where the Honourable Justice Ngulube explained contempt of Court on page 61, in the following terms: "· .. . contempt of this kind is punished not for the purpose of protecting either the Court as a whole, or the individual judges of the Court/ram a repetition ofthe attack, but ofp rotecting the public especially those who either voluntarily or by compulsion are subject to the jurisdiction of the Court from mischief they will in incur if the authority of the tribunal is undermined or impaired." R19 It is also argued that it could not be over-emphasized that the alleged Contemnor was aware of the Order being in force as could be seen from the Affidavit in Support of this application which clearly demonstrated the Alleged Contemnor's awareness of the Order. In making this argument, Counsel relied on the case of HADKINSON v. HADKINSON [11] where it was held that "It was a plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it is discharged and disobedience of such an order would as a general ntle, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he has purged his contempt." It is finally submitted that the Applicant had a good cause of action, and the order for committal being sought was a necessity in this matter. It is argued that if the alleged Contemnor went unpunished for simply raising technical issues, the Court Order would continue to be undermined. Moreover, that a Court Order whether good or bad must be obeyed and whether it was irregular or not, parties must still respect it. It is therefore not in the interest of justice for one to violate a Court order in order to shield oneself since the Court Order did not have penal notice or was not proper. On this basis this Court was urged to dismiss the application with costs and proceed with the proceedings for contempt. The Respondent also filed skeleton arguments in reply. Although I have not reproduced them in this Ruling, I took time to consider them extensively. Hearing and Determination of the Matter This matter was commenced by way of Notice of Motion to set aside committal proceedings for Irregularity on the following grounds: R20 (i) That the notice of motion does not set out the conduct of the Alleged Contemnor which is deemed to constitute contempt of court; (ii) The order dated 21st November, 2022 does not endorse a penal notice; and (iii) The said Order was not personally served on the Alleged Contemnor. In support of the first ground to set aside the committal proceedings for irregularity, Counsel for the Respondent has argued that the procedure for committal proceedings in Zambia is to be adhered to strictly, and that the notice of motion must state the grounds for the application for an order of committal or the grounds why one is to be committed to prison. It is argued that this particular notice of motion did not contain any grounds for the application for committal of the alleged cont emnor to prison and yet this was a mandatory requirement. The Petitioner argued in response that this submission by the Alleged Contemnor is misconceived given that the notice of motion in this matter clearly set out the alleged misconduct by the Alleged Contemnor. The Petitioners Notice of Motion for an Order of Committal of the alleged Contemnor was made pursuant to Order 52 Rule 2 of the Rules of the Supreme Court of England (RSC) 1999 Edition. Order 52 Rule 4 of the RSC sets out the requirements for an order of committal by stating the following: "Application to Court other than Divisional Court 52/4 4. - (1) Where an application for an order of committal may be made to a Court other than a Divisional Court, the application must be made by motion and be supported by an ajfidavit. R21 (2) Subject to paragraph (3) the notice of motion, stating the grounds of the application and accompanied by a copy of the affidavit in support of the application, must be served personally on the person sought to be committed. (3) Without prejudice to its powers under Order 65, ,ule 4, the Court may dispense with service of the notice of motion under this rule if it thinks it just to do so. (4) This rule does not apply to proceedings brought before a single judge by virtue of Order 64, rule 4. (SJ An application made to a Divisional Court by virtue of paragraph (4) must be made within 8 days after the judge's refusal to give leave or, ifa Divisional Court does not sit within that period, on the first day on which it sits thereafter." It is trite law that the purpose of the Court's power to make orders of contempt of court has been to prevent any attempt to interfere with the administration of justice. However, given that it deals with the liberty of individuals, a court must exercise great care in dealing with applications relating to contempt of Court. This position was brought to light in the case of BEATRICE NYAMBE V BARCLAYS BANK ZAMBIA PLC [1) where Justice A. M. Wood stated that "Contempt ofC ourt 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 of court. It is therefore imperative that the rules are strictly followed." R22 I took time to peruse the impugned Notice of Motion for an Order of Committal of the Alleged Contemno r for breach of the Order dated 21st November, 2022 pursuant to Order 52 Rule 2 of the Rules of the Supreme Court of England (RSC) 1999 that was filed into Court by the Petitioner on 8th October, 2024. It was set out as follows: "NOTICE OF MOTION FOR AN ORDER OF COMMITTAL OF THE ALLEGED CONTEMNOR FOR BREACH OF THE ORDER DATED 21st NOVEMBER 2022 PURSUANT TO ORDER 52 RULE 2 OF THE RULES OF THE SUPREME COURT OF ENGLAND (RSC) 1999 An application in respect of an Order of the judge of the High Court (Honorable Mr. Justice W.S MWEEMBA) sitting at Lusaka dated the 1st day of October 2024. TAKE NOTICE that the High Court will be moved before MR. JUSTICE W. S MWEEMBA on the day of 2024 at hours or so soon thereafter as Counsel can be heard on behalf of the above-named Petitioner for an order that HILDAH NUKWASE being the named Allege Contemnor/ Respondent herein be committed to prison for his contempt of the Court by will.fully refusing and neglecting to follow the orders of this Honourable Court to grant access of the children to the named Petitioner and by which such actions are in willful disobedience of the Orders of Hon. Mr. Justice W.S Mweemba dated the 21st day of November 2024 made in this action. AND that the ALLEGED CONTEMNOR to pay the named PETITIONER the costs incidental to this application and also of the issuing and execution of any order to be made herein. AND that such further or other order be made as the nature of the case may require. R23 AND FURTHER TAKE NOTICE that the named Petitioner intends to read and use the Affidavit deposed by Shuko Willie Chunga and the Stateme1f.t Supporting an Application for Leave to Issue Notice of Motion for Committal Proceedings for contempt of Court filed herein on the 18th of March, 2024 proving the same contempt, a copy of which Affidavit and Statement is served with this Notice of Motion. Quite clearly, Order 52 Rule 4 of the RSC is very specific when it comes to the nature of applications for an order of committal. It shows that such application must be made by motion and be supported by an affidavit. It further shows that the notice of motion must state the grounds of the application and that the application must be served personally on the person sought to be committed. Counsel for the Respondent cited the case of LAW ASSOCIATION OF ZAMBIA V TUTWA NGULUBE [4J where the Constitutional Court when dealing with a similar analysis held thatWe have perused the impugned notice of motion which essentially states that the Respondent published an audio recording on various social media platforms on the proceedings in the main matter. This is followed by the listing of the four grounds of the application. It is thus clear that although the notice of motion makes mention of an audio recording, it does not specify the actual words uttered that are alleged to be contemptuous. The specific words uttered are contained in the Applicant's affidavit. The explanatory note No. 52/4/3 on the grounds of the application clearly stipulates in part that: The notice of motion must state exactly what the alleged contemnor has done or omitted to do which constitutes a contempt ofc ourt with sufficient particularity to enable him to meet the charge. The necessary information must be given in the notice itself; if lengthy R24 particulars are required it is permissible to include them in a schedule or addendum to the notice, provided that they form part of the notice itself; it is not permissible to refer in the notice to an affidavit or other separate document for particulars which ought to be in the notice. This explanatory note is clear that the particulars of what is alleged to have constituted contempt must be given in the notice of motion itself and where it is lengthy, it should be placed in the schedule or addendum to the notice. It is further categorical that it is not permissible to refer in the notice to an affidavit or other separate documents for the said particulars. Counsel argued that this is for good reason because committal proceedings are quasi criminal proceedings and can culminate in severe sanctions including imprisonment. Hence, there are strict requirements to ensure that the alleged contemnor is put on proper notice of the case against him and such procedural rules must be strictly complied with. The notice of motion does not state the alleged contemptuous words but only makes reference to an audio recording. Although Counsel for the Respondent opposed this application and stated that the wording of the Notice of Motion set out the alleged misconduct by the Alleged Contemnor by indicating the words "that HILDAH NUKWASE being the named Allege Contemnor/ Respondent herein be committed to prison for his contempt of the Court by willfully refusing and neglecting to follow the orders of this Honourable Court to grant access of the children to the named Petitioner and by which such actions are in willful disobedience of the Orders of Hon. Mr. Justice W. S Mweemba dated the 21st day of November 2024 made in this action." R25 It is my considered view that Order 52 Rule 4 of the RSC envisages that more specific details of the alleged contempt are to be set out in the Notice of Motion in order for an alleged contemnor to meet the charge sufficiently. This was aptly stated in the case ofLAZ V TUTWA NGULUBE [4] wherein it was stated that, "The notice of motion must state exactly what the alleged contemnor has done or omitted to do which constitutes a contempt of court with sufficient particularity to enable him to meet the charge. The necessary information must be given in the notice itself; if lengthy particulars are required it is permissible to include them in a schedule or addendum to the notice, provided that they form part of the notice itself; it is not permissible to refer in the notice to an affidavit or other separate document for particulars which ought to be in the notice." Apart from this holding I also considered the Supreme Court's decision in the case of BANK OF ZAMBIA V AARON CHUNGU, ACCESS FINANCE SERVICE LIMITED AND ACCESS LEASING LIMITED [3) which summed up the effect of failure to include the grounds of the contempt in the notice of motion by stating thatEqually, the motion for committal for contempt on the face of it, did not also comply with the provisions of Order 52 Rule 4 (2) RSC as it did not state on the face of it the grounds of the application. The motion did not specify with sufficient particularity the acts that constituted contempt. In the case of Jelsen, the motion merely alleged that the Court's Order had been broken and gave no particulars whatsoever. When it came up for hearing, the Judge at the outset dismissed the motion because it did not comply with Order 52, Rule 4. (See also Chiltern District Council v Keane. For the foregoing reasons, ground two of appeal is also allowed. In light of these holdings, I find and HOLD that the Notice of Motion filed by the Petitioner did not set out the specific details of the alleged contemptuous R26 acts as envisaged by the law under which this Court would exercise its jurisdiction to make an order of contempt of court which has the power to affect the civil liberty of an individual which is a human right. It is on this premise that the rules of Court in this regard must be followed strictly. The Notice of Motion did not state exactly what the alleged contemnor has done or omitted to do which constitutes a contempt of Court. I accordingly find that the Notice of Motion lacks sufficient particularity contrary to the requirements of Order 52 Rule 4 of the White Book. The failure to follow the rules in this particular application is fatal. The second ground advanced by the Respondent was that there was no Penal Notice endorsed on the Order dated 21st November, 2022 and as a result, it did not comply with the provisions of Order 45 Rule 7(4} of the RSC. Order 45 Rule 7(4} of the RSC provides that - "There must be Prominently displayed on the front of the copy of an order senJed under this rule, a warning to the person who the copy is served that disobedience to the order would be a contempt of court punishable by imprisonment or (in the case of an order requiring a body corporate to do or abstain from doing an act} punishable by sequestration of the assets of the body corporate and by imprisonment of any individual responsible." Counsel also relied on the case of SITIMA TEMBO V NATIONAL COUNCIL FOR SCIENTIFIC RESEARCH [5] where the Supreme Court refused to grant an order of committal because the applicant did not place a penal notice on an injunction as required by the law. It was argued that the failure by the Petitioner to endorse a penal notice on the order warning the alleged contemnor of the possibility of committal in the event that the order was disobeyed, is fatal to the committal proceedings subsequently instituted by the Petitioner. R27 In response, Counsel for the Petitioner conceded that under Order 45 (4) there was a requirement to prominently display the Penal Notice on the Order but pointed out that under Order 45 Rule 7 the Court had the discretion to dispense with the failure to incorporate a penal notice into an order. However, Counsel for the Respondent argued in reply that the Order of the Court did not require the Alleged Contemnor to abstain from doing anything since it stated that the Petitioner was to have access to the children of the family during weekends until the interim order of custody had been determined. After analyzing Order 45 (4) which is set out above as well as the explanatory notes under Order 45/7/6 it is clear that the Court only has discretion to dispense with failure to incorporate a penal notice in a judgment or order requiring a person to abstain from doing an act but it has no such discretion to dispense with the penal notice where the judgment or order requires the person to do an act as is the case in casu. As a matter of fact, a reading of Order 45(4) clearly demonstrates that it is mandatory for the penal notice to be displayed on the front of the Order which should be the first page. Further, the warning should be directed to the person on whom the copy of the Order is served and it must state the consequences of the disobedience. This is because the penal notice proclaims the eventual punishment in the event of disobedience. I therefore find merit in the Respondents argument and accept the submission that the Order in this matter was outside the ambit of orders that the Court had the discretion to dispense with as highlighted in the case of ATTORNEY GENERAL V NIGEL MUTUNA [7]. As the Applicant in this case had time to draw a written Order, the Order should have contained a penal notice as required. I therefore find that the failure to endorse a penal notice R28 on the said Order is fatal and therefore renders the contempt proceedings to be set aside. The third ground in this application is that the Order was not personally served on the Alleged Contemnor. It is argued by the Respondent that the committal proceedings should be set aside for being irregular due to the Petitioner's failure to satisfy an essential condition precedent of personal service contrary to Order 45 Rule 7 (2)(a) and (b) of the Rules of the RSC. In response it is argued that the Order 45(7)(7) of the RSC actually gave the Court wide powers to dispense with the service of the copy of the order and allow contempt proceedings to proceed. Apart from this, Counsel also drew my attention to the manner in which service is conducted in this jurisdiction where a party is represented by a Legal Practitioner in line with Rule 37(3) oft he Legal Practitioners Rules which prohibits direct communication with a party that is represented by Counsel. Order 45(7)(7) provides as follows: "Without prejudice to its powers under Order 65, rule 4, the Court may dispense with service of a copy of an order under this rule ifit thinks it just to do so." In my view the issue of failure to effect personal service under this Order is a defect which can be cured before proceeding with the contempt proceedings and is not fatal. In other words, it can only be fatal if the Court proceeds with the contempt proceedings before and without ensuring that the alleged contemnor is given an opportunity to know and understand what is being alleged against him. In that respect, the Court has the right to adjourn the proceedings and Order that all the requisite documentation be served on the Defendant or alleged contemnor, so that by the time of the return date, they are able to know and understand what is being alleged against them in Order for them to meet the allegations. R29 In this case I have noted that the Alleged Contemnor despite not having been personally served was made aware of these proceedings by her lawyers who were served. On this basis I find that the failure to effect personal service is not fatal in this matter. Based on all the foregoing, I find that the Notice of Motion that was filed into Court is irregular given that it did not set out the specific alleged conduct of the Alleged Contemnor that was deemed to constitute contempt of Court and due to the fact that the Order did not endorse a penal notice on its front. The application for an Order of committal is refused. The committal proceedings are hereby set aside on account of irregularity. Each party is to bear their own costs. Leave to appeal is granted. DELIVERED IN CHAMBERS AT LUSAKA THIS 31,5~ DAY OF MARCH, 2025. WILLIAM S. MWEEMBA..., HIGH COURT JUDGE R30