CIV/T/573/83 CIV/APN/270/83
IN THE HIGH COURT OF LESOTHO
In the Matter of
'MATHASI AMINATA KURUBALLY Plaintiff (nee Lethunya)
vALASANA KURUBALLY Defendant
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molaion the 12th day of June, 1985
This is an application by Plaintiff in an action for restitution of conjugal rights that the court should condone lack of service of the restitution order in the normal way, confirm the rule nisi and grant the Plaintiff further/alternative relief..
Defendant originally came from Gambia but was ordinarily resident in Lesotho where he dealt in diamonds. In June 1977 he got married to the Plaintiff, a Mosotho citizen.
On 7th March, 1984, defendant filed with the Registrar of this Court an affidavit in which he deposed, inter alia, that he was withdrawing his plea in an action in which plaintiff had sued him for divorce on the ground of malicious desertion and the case should, therefore, proceed uncontested. The case duly proceeded uncontested on 13th March, 1984 when a rule nisi was issued against the defendant calling upon him to restore conjugal rights on or before 28th March, 1984, failing compliance therewith to show cause on 2nd April, 1984 why plaintiff should not be awarded a decree of divorce, custody of the minor children of the marriage, etc.
The Respondent did not restore conjugal rights on or before 28th Match 1984 and on 2nd April, 1984 only the plaintiff appeared before the court to report that
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defendant had since returned to Gambia and it had, therefore, not been possible to serve him personally with the restitution order A proposal to try and serve the order by registered mail was turned down and the court ordered that service be effected through the Diplomatic service. For that reason the matter was postponed to a later date.
After a long chain of postponements, it was still not possible to effect service of the order and Plaintiff has now approached this court for an order as aforementioned.
In her founding affidavit, Plaintiff avers that defendant left Lesotho for Gambia on 7th March, 1984 aware that he was about to be served with the restitution order He promised to return to Lesotho in about two weeks' time but never did so. Plaintiff does not know any of the relatives of the defendant in Gambia nor does she know their addresses.
Pursuant to the order made by this court on 2nd April, 1984 that the restitution order be served through the Diplomatic service, the Assistant Registrar, by a letter through the Lesotho Ministry of Foreign Affairs, dispatched the said order on 13th April, 1984 to the Gambian Ministry of Foreign Affairs and a reminder thereto was sent on 12th June, 1984 without any response The last time plaintiff heard from the defendant was in August 1984 when he telephoned from the United States of America to say he was not prepared to restore conjugal rights
Plaintiff avers that she verily believes that it is impossible to serve the order on the defendant as his business requires him to move from country to country. Wherefore she prays for relief as aforesaid
That personal service of the restitution order upon the defendant is mandatory was not in dispute As Beadle C.J. put it in Fuller v. Fuller 1971(1) S A. 26E
". .. unless a special order is given as to the form of service, a rule nisi in a divorce matter must be served as a summons, that is, it must be served personally by the sheriff or his deputy."
3/ In his
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In his able argument,Mr. Pheko who appeared for the Plaintiff contended that by his conduct, the defendant had rendered personal service of the order impossible and the court had, therefore, a discretion to condone none compliance with the requirement of personal service
I agree The plaintiff should not be deprived of a remedy simply because the defendant has rendered it impossible to serve him personally with the restitution order To hold the contrary would imply that the defendant could hold this court at ransom in the performance of its work. That would be totally unacceptable.
In the special circumstances of this case, I amprepared to condone lack of personal service of the restitution order and award plaintiff a final decree of divorcetogether with its auxiliary prayers
B K MOLAI JUDGE
12th June, 1985.
For Plaintiff Mr. Pheko For Defendant