IN THE COURT OF APPEAL OF LESOTHO

 

HELD AT MASERU                               

                                                C OF A (CIV) No.24/2017

                                                CIV/T/411/13

 

In the matter between:-

 

‘MAKABELO TJAMELA                           APPELLANT

 

And

 

THABO TJAMELA                                  RESPONDENT

 

 

CORAM:          CHINHENGO AJA

                        MOKHESI AJA

                        MTSHIYA AJA

                        

 

HEARD:            19 November 2018

DELIVERED:    7 December 2018

 

SUMMARY

Divorce: Malicious desertion.

 

 

 

JUDGMENT

 

MTSHIYA AJA:-

[1]    This is a divorce matter where, on 24 April 2017, the High     Court granted the following order:

 

        “ IT IS ORDERED THAT:

          1.       Divorce is granted to Plaintiff on the basis of                                              Defendant’s desertion.

          2.       Ancillary prays are deferred concerning the estate of the                            parties which may hopefully made an order of court.

          3.       There is no prayer for costs it being a matrimonial order.’’

 

         

[2]    On 2 May 2017 the appellant filed a notice of appeal in this   Court, with the following grounds of appeal:

 

“1.

          The court a quo misdirected itself and erred in law by granting Plaintiff     a decree of divorce without first establishing that Plaintiff had served          a Restitution Order on Defendant – Plaintiff had in fact failed to serve    Defendant with a Restitution Order.

 

2.

          The court a quo misdirected itself and erred in aw in granting Plaintiff       a decree of divorce without ascertaining that Plaintiff had filed a   Restitution Order – Plaintiff had in fact failed to file a Restitution Order.

 

 

 

 

 

3.

          The court a quo erred in law in granting a decree of divorce against Defendant when Defendant has not been served with a Restitution       Order by Plaintiff.

 

4.

          Paragraph 5 Plaintiff’s Affidavit of Non-Return of Service (annexed to the Grounds of Appeal hereto), was calculated to mislead the Court by alleging that Defendant has not restored conjugal rights as ordered without in any way showing that Defendant had in fact been served    with the Restitution Order.  The Court misdirected itself by granting the     divorce order on the basis of Plaintiff’s vague allegation which was           calculated to mislead the Court.”

 

 

[3]    On 22 May 2017, the respondent filed a Notice of Intention to         oppose.  There are no opposing papers in the record.

 

[4]    On 16 November 2018, the appellant filed a Notice of     Withdrawal.  The Court was accordingly advised of the        withdrawal during the roll call on 19 November 2018.

 

[5]    The Court has accordingly noted that this matter was     withdrawn on 16 November 2018.

 

 

 

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

                                                        MTSHIYA AJA

                                                        ACTING JUDGE OF APPEAL

       

 

 

        I agree:    

 

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

                                                        CHINHENGO AJA

                                                        ACTING JUDGE OF APPEAL

       

        I agree:

 

 

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

                                                        MOKHESI AJA

                                                        ACTING JUDGE OF APPEAL

       

 

        For Appellant:          Adv. V.Kotelo

        For Respondent:      Adv. M. Ntlhoki