LIKUKELA V ATTORNEY GENERAL AND ORS (2018/CCZ/0011) [2019] ZMCC 25 (23 January 2019)

R1 IN THE CONSTITUTIONAL COURT OF ZAMBIA 2018/CCZ/0011 HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) 2 2 FEB 2019 IN THE MATTER OF: J ARTICLE 28 OF THE ZAMBIAN CONSTJTUTION, CHAPTER ONE I I OF THE LAWS OF ZAMBIA IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLES 11 (a) (b), (c) AND (d) AND 12 (1), 13 (1), 14 (1) 7 (2), 15 AND 16 (1), 17, 18 (9); 22 and 91 (2) OF THE ZAMBIAN CONSTITUTION, CHAPTER 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLES 118, 122 (1) (2) (3) (4), 140 AND 141, 143, 144, 185, 187 (1) AND (2), 189 (1) AND (2), 193 (2), 220 and 213 (2) AND (5) OF THE CONSTITUTION (AMENDMENT) ACT NO. 2 OF 2016; AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLES 97-105 OF THE CHARTER OF THE UNITED NATIONS IN THE MATTER OF: ALLEGED CONTRA VENT ION OF ARTICLES 1 -18, 22-26 AND 28- 30 OF THE UNITED NATIONS UNIVERSAL DECLARATION OF HUMAN RIGHTS IN THE MATTER OF: ALLEGED CONTRAVENTION OF SECTION 1, 2, 3, 29 AND 30 OF THE CONVENTION OF PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS; IN THE MATTER OF: ALLEGED CONTRAVENTION OF SECTIONS 3-8 OF THE PERSONS WITH DISABILITIES ACT NO. 6 OF 2012; AND SECTION 3-6 OF THE UNITED NATIONS CONVENTION ON PERSONS WITH DISABILITIES AND OPTIONAL PROTOCOL; AND IN THE MATTER OF: ALLEGED CONTRAVENTION OF SECTIONS 3, 8-11 OF THE MONEY LENDER'S ACT CHAPTER 398 OF THE LAWS OF ZAMBIA; AND SECTIONS 40-41 OF THE BANKING AND FINANCIAL SERVICES ACT, CHAPTER 397 OF THE LAWS OF ZAMBIA R2 IN THE MATTER OF: ALLEGED CONTRAVENTION OF SECTIONS 3 -11 OF THE JUDICIAL (CODE OF CONDUCT) ACT NO. 13 OF 1999 BETWEEN DORA NAMASIKU LIKUKELA PETITIONER AND ATTORNEY GENERAL AND OTHERS 1 5 T RESPONDENT LAW ASSOCIATION OF ZAMBIA AND ZIALE 2ND RESPONDENT UNITED NATIONS FEDERAL CREDIT UNION 3RD RESPONDENT BANK OF ZAMBIA AND PACRA 4TH RESPONDENT MULENGA MUNDASHI AND COMPANY 5TH RESPONDENT MUSA DUDHIA AND COMPANY 2 2 FEB 2019 5 TH RESPONDENT JUDICIAL COMPLAINTS COMMMISSION 7TH RESPONDENT GILBERT PHIRI AND PNP ADVOCATES 8TH RESPONDENT MAKEBI ZULU ADVOCATES AKM LEGAL PRACTITIONERS BRUFASS LIMITED 9TH RESPONDENT 10TH RESPONDENT 11TH RESPONDENT MICHELO, MWAKA AND YVONNE SHAKANTU 12TH RESPONDENT MUBUYAETA KAPINDA 13TH RESPONDENT CORAM: Sitali, Mulenga, Mulembe, Mulonda and Munalula, JJC on 17th January, 2019 and 22nd February, 2019 For th e Petitioner In Person For the 1st Respondent Ms. D. Mulondiwa, Assistant Senior State Advocate Attorney General's Chambers For the 2°d Responde nts Ms. M. Undi, Messrs Erick Silwamba, J alasi and Linyama Legal Practitioners For the 3 rd and 6 th Respond en ts: For the 4 th Respondents R3 Mr. B. Ngalasa Messrs Musuwila Chalwe Advocates Mr. M. Ndalameta, Messrs Musa Dudhia and Company Mr. C. K. Sikazwe, Bank of Zambia (In House Counsel) Mr. M. Siankumo PACRA (In House Counsel) For the 5 thRespondent No a ppearance For the 7 thRespondent No appearance For the 8 thRespondent No appearance For the 9 thRespondent Mr. J. Zimba and Ms. B . Kapitolo, Messrs Makebi Zulu Advocates For the 10th Respondent No appearance For th e 11 th Respondent No appearance For the 12th Respondent Mr. M. H. Haimbe Messrs Malambo and Company RULING Mulenga, JC delivered the Ruling of the Court Cases referred to: 1. R v Governor of Brixton Prison (No.4) [1992) 1 ALL E. R. 579 2. lndeni Petroleum Refinery Company Limited v Kafco Oil Limited Selected Judgment No. 29 of 2017 3. Ismail Abdullah Bhamjee v David Forsdick and Others (2003] EWCA Civ 113 4. Perotti v Collyer Bristow (a firm) (2004) 4 All E. R. 53 5. Dorah Namasiku Likukela v United Nations Federal Credit Union (Appeal No. 40 and 81 of 2015) (unreported) 6. Margaret Mwanakatwe v Charlotte Scott and Attorney General 2016/CC/A018 Selected Ruling No. 11 of 2018 R4 7. Chick Masters Ltd and Another v lnvestrust Bank Pie SCZ Appeal No. 74 of 2014 (Unreported) 8. Mwenya v Nkandu Luo and The Attorney General 2017/CCZ/009 9. Geofrey Malembeka v The Attorney General and The Electoral Commission of Zambia Selected Judgment No. 34 of 2017 10. Grepe v Loam [1887] 37 ChD 168 11. Attorney General v Ebert [2002] 2 ALL E. R. 789 Legislation referred to: The Constitution of Zambia as amended by Act No. 2 of 2016 Other Works referred to: 1. The Rules of the Supreme Court of England, 1965 (White Book) 1999 Edition 2. P. Matibini, Zambian Civil Procedure: Commentary and Cases, Volume 1, LexisNexis, 2017 This Ruling is on the 3 rd and 6 th Respondent's Notice of Motion to dispose of the Petition on a point of law pursuant to Order 33 rule 3 and Order 14A rule 1 of the Rules of the Supreme Court of England 1965 (White Book) 1999 Edition. The 3 rd and 6 th Respondents seek to dispose of the Petition under cause 20 18/CCZ/ 0011 filed in this Court on 18th September, 2018 on the ground that it is an abuse of Court process and is frivolous and vexatious. The brief background to this case is that the Petitioner worked in th e United Nations (UN) system for some years after which service she was paid her benefits. The amount paid to her is the subject of litigation in the various court actions instituted by or against the Petitioner. The Petitioner challenges the recovery of part of the money and some properties from her. These court actions which are outlined in the Petition are 2014/HPC/0057, 2014/SCCL/ 1250, 2015 / HP/ 0735, RS 2015/HP/1179 , 2015/HP/1825 and 2016 / HP/0415. The Petitioner in her Petition filed on 18th September, 2018 raised various allegations of fraudulent, deceptive and manipulative litigations and that she has not been accorded an opportunity to be heard by the court in the various cases due to alleged manipulations by the Respondents and some court officials. The 3 rd and 6 thRespondents have thus moved this Court to decide on the following two points of law: 1. Whether the Petition dated 18th September, 2018 is an abuse of court process and ought to be dismissed for being frivolous and vexatious; and 2. If the Petition 1s so dismissed, whether a civil restraint order against the Petitioner ought to be made in the following terms: a. The petitioner be restrained from making any further applications unless she first obtains the leave of the Court and satisfies the Court that such an application is not an abuse of process and that there are reasonable grounds for the application; b . If the Petitioner wishes to apply for such permission then such application for permission must be made in writing and will be disposed of without an oral hearing, unless the Court directs otherwise; c. This Court's decision on an application for permission shall be final and not subject to any appeal unless this Court gives permission to appeal therefrom; and R6 d. Where the Petitioner is granted leave to make an application and that application is determined, the Petitioner will still be required to follow the process set out above if she wishes to challenge the said decision. In the affidavit in support of the Notice of Motion, sworn by Mulopa Ndalameta in his capacity as counsel seized with conduct of this matter as well as the case under cause number 2014/HPC/0057, it was averred that the contents of the Petition and the affidavit verifying facts are incomprehensible and are issued against thirteen Respondents who have no connection to each other or any single event. It was also averred that cause 2014 / HPC / 0057 which is referred to in the Petition was still active in the court below. Further, that the Petitioner in this case seeks reliefs under the Bill of Rights and other international human rights instruments. The deponent went on to relate how the Petitioner has conducted herself in cause 2014 / HPC / 0057 in that she has demonstrated a propensity to file tediously long documents containing extraneous issues. In paragraph 8 of the affidavit in support, a total of about ten applications that the Petitioner has so far made 1n cause 2014/HPC/0057 are cited. The deponent also states that based on the said applications the 3 rd and 6 th Respondents have applied for a civil restraint order under cause 2014/HPC/0057 which is yet to be decided on by the court below. It was concluded that seeing as the Petitioner has extended her vexatious actions against the Respondents through this Petition, this is an appropriate case in which to prevent the further R7 abuse of court process and protect the integrity of the administration of justice. In the skeleton arguments filed in support of the Notice of Motion, the 3 rdand 6 th Respondents argued that it is not possible to understand the gist of the Petition hence their desire to dismiss it. In particular, as regards abuse of court process, it was argued that this is where the court system is used in a manner that is not bonafide or is unwarranted. Further, that this Court should supervise the Petitioner's access to and u se of the court process because the Petitioner is not using the court procedure properly or in a bona fide manner but is instead subjecting the Respondents to vexation and oppression. In aid of this, the Respondent had recourse to R v Governor of Brixton Prison (No.4) 1 which espoused the principle that a Court has inherent control to prevent its procedure being used in a manner which amounts to abuse of process or in a manner which is vexatious. Also cited was the case of Indeni Petroleum Refinery Company Limited v Kafco Oil Limited2 , where the Suprem e Court had occasion to consider the inherent jurisdiction of a court and observed that: "A robust Judge must ensure that he is alert and invokes the inherent jurisdiction vested in him of weeding out hopeless, frivolous and vexatious matters and those wrongly presented before him after giving the parties an opportunity to be heard." In support of the second issue regarding the prayer for a civil restraint order, reference was made to paragraph 18/ 19 /35 of the Rules of the Supreme Court which states that: RS "And when either party to an action has made repeated frivolous applications to the Judge or Master, the Court has power to make an order prohibiting any further application by him without leave ... " The cases of Ismail Abdullah Bhamjee v David Forsdick3and Perotti v Collyer Bristow (a firm) 3 were relied upon to highlight instances where a civil restraint order has been granted against a party. It is the 3 rd and 6 th Respondents' contention that the Petitioner 's conduct in cause 2014/HPC/0057 warrants the grant of a civil restraint order in this cause. The 3 r d and 6 th Respondents further reproduced parts of the judgment in the case of Dorah Namasiku Likukela v United Nations Federal Credit Union4 where the Supreme Court stated as follows: "Although we acknowledge the fact that the Defendant is a lay person who is appearing in person, nevertheless, the manner she has conducted this case and indeed, her Appeal before us is not what we would encourage litigants and other court users to do. Not only has there been total disregard for the Rules of Court and procedure but she also went on a perilous journey of attacking everybody who dealt with or whom she thinks has in one way or the other been connected to her case. This includes her own legal Counsel and Counsel for the Plaintiff. Even the trial Judge herself has not been spared from the vicious attacks and unstoppable allegations of bias. We do not expect to see this type of conduct from court users and litigants. The Defendant has also flooded the court with numerous and lengthy documents including heads of argument which number over 100 pages at this preliminary stage of the case resulting into a long time being spent in trying to decipher what is being claimed or argued and indeed, what relates to the matters in issue." It was the 3 rd and 6 th Respondents' position that a civil restraint order and close supervision is an a ppropriate measure for litigants such R9 as the Petitioner in order to prohibit any further applications in a particular cause or action without the permission of the court. They contended that the civil restraint order should be made in respect of the Petitioner's access to the Constitutional Court on the terms itemised in the Notice of Motion reproduced above. Furthermore, that the Petitioner's use of the court machinery is now so extreme that it is necessary to protect the Respondents, this Court, registry staff and marshals. At the hearing of the application on 17th January, 2019, learned counsel for the 3 rd and 6 th Respondent, Mr. Ndalameta, relied on the affidavit in support of the application and the skeleton arguments filed in support thereof. In augmenting the skeleton arguments, learned counsel stated that the Petition seeks to enforce selected provisions of the Bill of Rights, which course of action can only be taken in the High Court. He added that this Court cannot adjudicate on completely unrelated acts or omissions. Counsel prayed that the Petition be dismissed and the Petitioner be granted restrained access to the Court. In supporting the 3 rd and 6 th Respondents' application and submissions, learned counsel for the 1st, 2 n d , 4 th , 7 th , 9 th and 12th Respondents all stated that they supported the motion and were equally of the view that the Petition was vexatious, scandalous and ought not to be entertained by this Court. In opposing the Notice of Motion, the Petitioner filed a lengthy affidavit comprising two hundred and sixty-eight paragraphs and one hundred and fifty-three pages. Without regard to the extraneous R10 matters therein, the Petitioner's response was essentially th at even if courts have power to strike out vexatious and frivolous statements or applications, the power should be exercised sparingly and matters should be struck out where there is a clear abuse of judicial process. She contended that she has not abused the judicial process but had suffered fundamental human rights violations and hence had the right to the protection of the law. In her equally lengthy skeleton arguments in opposition spanning over 60 pages, the Petitioner heavily relied on international instruments as well as international and regional h uman rights conventions to fortify her p osition that she has the right to a remedy over the human rights violations she had suffered. It was the Petitioner's contention that the action before this Court was not frivolous or vexatious but was meant to remedy illegalities perpetuated against her by the Respondents in the various legal suits before court. That her Petition can only be disposed off after it has been heard by this Court as doing otherwise will not resolve the infringements of her rights. The Petitioner added that h er Petition was properly before this court having been instituted under section 8 of the Constitutional Court Act and was very clear. And finally that the record of proceedings was incomplete and misleading as it did not include all the exhibits attached to her affidavit verifying facts in the Petition and to her affidavit in opposition to the Notice of Motion, some of which were unmarked. At the hearing, the Petitioner relied on her affidavit in opposition and the arguments filed on 19th December, 20 18. In augumenting the R11 same, the Petitioner impugned the record of proceedings on the ground that pages 50 to 109 and pages 167 to 320 of the record of proceedings were a misrepresentation of facts in that the exhibits were forged or altered whereby the marks on them were deleted so as to mislead this Court. The Petitioner further stated that the 3rct and 6 t h Respondents had not specifically highlighted the portions of the Petition and of the affidavit verifying facts which were frivolous and vexatious. It was h er submission that her Petition concerned fundamental rights infringement and contraven tion of the Constitution for which all t h e Respondents were accountable. She argued that instead of dismissing the Petition, the Court should hear it so as to uphold the Petitioner's absolute or fundamental rights. Further, that should th e Court be of the view that it cannot h ear the Petition, it would be in the inter est of justice for the Petition to be forwarded to the United Nations and not the High Court from which s h e was s eeking restitution. The Petitioner prayed that the application b e dismissed for lack of merit. In reply, Mr. Ndalameta stated tha t as regards the allegation of forgery, the Registrar's certificate of record at page 2 of the record of proceedings speaks to the authenticity of the record of proceedings. He added tha t notwithstanding the Petitioner 's position on wh at s h e termed as her a bsolute rights , all rights have limits when considered again st counter balancing interests . Lastly, he stated tha t the Petition and the affidavit verifying facts were frivolous and vexatious in total and tha t n ot everything that comes to one's mind should be put in court documents. Mr. Ndalameta thus reitera ted his prayer that the Petition be dismissed with costs to the Respondents. R12 We have duly considered the application before us, the affidavit evidence and the skeleton arguments filed by the parties. We first wish to address the issue raised by the Petitioner at the hearing that the record of proceedings, which was filed on 10th December, 2018, was a misrepresentation of facts particularly pages 50-109 and that at pages 167 to 320 marks on her exhibits were deleted. The Petitioner, when queried by the Court as to why she had only raised the issue at the hearing and not in her skeleton arguments, stated that she did not include this issue in her filed arguments because she only got the record of proceedings on the day she filed her skeleton arguments, that is, on 19th December, 2018. This matter was heard on 17th January, 2019. These dates show that the Petitioner had ample time to appropriately raise the issue concerning the record of proceedings but did not do so. We thus will not consider this issue further save to reiterate what we stated in the case of Margaret Mwanakatwe v Charlotte Scott and Attorney General6 and in other cases that parties must comply with the rules of procedure when filing their records of appeal or proceedings. Further, that whether an appeal or action ought to be dismissed on the basis of identified defects depends on the peculiar circumstances of each case because not every breach would result in an action or appeal being dismissed. The first issue raised in the Notice of Motion is that the Petition should be dismissed for being an abuse of process as well as being frivolous and vexatious. An examination of the Petition and the affidavit verifying facts reveals that the Petitioner has made a number of R13 allegations touching on matters that are being or have already been litigated upon 1n causes 2014/HPC / 0057, 2014/SCCL/1250, 2015/HP/0735, 2015/HP/1179, 2015/HP/1828 and 2016/HP/0415. The nature of the Petitioner's claim as well as the reliefs sought are not easy to comprehend. This is due to the many unrelated allegations therein as well as extraneous matters which make it incoherent. Order 9 rule 2 ( 1) of the Rules of the Supreme Court guides on the manner in which a petition is supposed to be set out. The rule dictates that a petition must have a concise statement of the nature of the claim made or the relief or remedy required in the proceedings. The Petition in the present case completely falls short of this requirement. Quite apart from the form of the Petition which falls short of the requirements, the more critical issue relates to the jurisdiction of this Court vis a vis the claims and the premise upon which the reliefs are being sought. The argument by the 3 rd and 6 th Respondents is that the Petition seeks to enforce rights enshrined in the Bill of Rights and is therefore an abuse of process as well as frivolous and vexatious. In this case, the Petitioner has conceded that her Petition is premised on the fundamental rights under the Bill of Rights which have allegedly been infringed and for which she is seeking redress from this Court. We also note from what we can decipher from the Petition that it focuses on claims relating to human rights violations which are anchored on the fundamental rights as enshrined in Part III of the Constitution. In particular, the Petitioner's claims centre on the alleged violation of her right to be heard as regards the court cases concerning her in the R14 High Court and Subordinate Court and what she terms as illegal deprivation of property. The Petition has been brought pursuant to Article 28 of the Constitution as well as Articles 12 to 18 and 22 of the Constitution which are under Part III of the Constitution, popularly known as the Bill of Rights, on protection of fundamental rights and freedoms of an individual. These articles guarantee, among others, the rights to life, liberty, non- deprivation of property and protection of the law through independent and impartial court system or bodies. Article 28 provides that anyone aggrieved concerning the fundamental rights enshrined in Part III of the Constitution should petition the High Court. The other articles cited being Articles 118 and 122 provide for the principles of judicial authority; that these should be exercised in a just and accountable manner and that there shall be functional independence of the Judiciary. Articles 140 to 144, 185, 193, 213 and 220 are on the establishment, qualifications and removal of judicial officers; establishment and functions of security services; and appointment of public officers. Articles 187 and 189 provide for pension benefits and related matters. The Petitioner has also cited the Universal Declaration of Human Rights and other United Nations conventions and instruments as well as local legislation. Further, the Petitioner, in the reliefs she seeks which are tabulated in 34 paragraphs, seeks declarations that the various mentioned cases in the High Court and Subordinate Court are illegal and fraudulent and are infringements on her fundamental rights and freedoms; that various R15 rulings in the said cases be nullified by this Court; that the acts of the Respondents and other named persons and institutions were illegal under various legislation and international instruments and violated h er rights under the Bill of Rights (Part III of the Constitution); and for restoration of money and properties and for compensation. We are mindful of the fact that the Petitioner is self-represented, but we have stated before that the m ere fact that a litigant is self represented d oes not exempt su ch a litigant from following the laid down court procedures and rules. Non compliance with the court procedures and rules including the mode of commencement of an action attracts adverse consequences or sanctions including dismissal of an action in deserving cases. The Supreme Court in the case of Chick Masters Ltd and Another v lnvestrust Bank Plc7 , which is cited by the learned author of Zambian Civil Procedure: Commentary and Cases, Dr. P. Matibini, explained abuse of court p rocess thus: "Abuse of court process can arise where the claim is vexatious, scurrilous, or obviously ill-founded such as where proceedings are started to pursue a claim which has already been dealt with by way of full and final settlement between the parties ......... The court will prevent the improper use of its machinery and will not allow it to be used as a means of vexatious and oppressive behaviour in the process of litigation." The Suprem e Court further stated that in consid ering whether a matter is an abuse of court process, the court must consider all the circumstances and then determine whether the litigant is misu sing or abusing the process of the court. R16 Paragr aph 18 / 19 / 18 of the White Book (RSC) explain s abuse of the process of the court as follows: "This term connotes that the process of the court must be used bona fide and properly and must not be abused ........... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public and interests of justice may be very material." The subsequent paragraphs list examples of abuse of process as re litigation, collateral purpose, spurious claims and hopeless proceedings, among others. As stated above, the list is not exhaustive. Abuse of cou rt process therefore in cludes instances where one commences an action in a wrong forum or court contrary to the provisions of the law or rules. All the above principles are sound and relevant in this m a tter. What is pertinent in this case is the issue of wrong forum which falls under the broader abuse of process and also deals with ill-founded actions. In this matter, the Petitioner seeks the redress or enforcement of her rights under Part III of the Constitution. It is settled law that a court has no jurisdiction to entertain claims of a party in an action which is wrongly commenced or brought before it. A party is obligated to abide by the prescribed mode of commencement in seeking relief before the court. In this case, the Petitioner has conceded that her Petition is premised on the fact that her righ ts under Part III of the Constitu tion, namely Articles 11 to 18 and 22, have been infringed and as such she is seeking redress . R17 The Constitution in Article 28 provides that where one alleges that the rights and freedoms under Part III have been infringed, a petition may be brought before the High Court. This provision guarantees access and right to justice by providing the enforcement or redress mechanism for the realisation of the rights. Article 128 reiterates that issues to deal with the enforcement of the provisions of Part III of the Constitution fall under the jurisdiction of the High Court and not this Court. Part III of the Constitution has remained unchanged despite the constitutional amendments of 2016 which brought in the Constitutional Court due to the fact that the referendum which was required to amend it failed. Hence, we wish to reiterate what this Court has clearly stated in the cases of Mwenya v Nkandu Luo and The Attorney General8 and Geofrey Malembeka v The Attorney General and Electoral Commission of Zambia9 that this Court's jurisdiction as set out by Article 128 of the Constitution of Zambia does not extend to the enforcement of the fundamental rights and freedoms contained in Part III of the Constitution. Thus, actions r elating to the enforcement of the Part III rights or fundamental rights must be commenced and dealt with in the High Court subject to the prescribed appeal process. It follows th at commencing such an action in this Court constitutes non compliance with the rules of court regarding the mode of commencement and is thus a hopeless proceeding and an abuse of process. The first preliminary issue accordingly succeeds. Before we leave this point, we note that the Petitioner in her oral submissions argued that should this Court find that it cannot hear the R18 Petition, then it should forward it to the United Nations and not the High Court from which she was seeking restitution. This argument is misconceived and not tenable as this Court has no mandate to refer matters to any other court or institution as requested by the Petitioner. The responsibility squarely lies on the Petitioner to take her case or matters to the forum at which she wishes to have them addressed. Where a matter has been found to have been wrongly commenced such as this one, it is for the Petitioner to proceed to commence the matter afresh in the High Court, since that is the Court that is clothed with jurisdiction to enforce or provide redress or relief on petitions relating to the Part III rights as provided by Articles 28 and 128 of the Constitution. This cannot be done by way of transfer of the case as requested by the Petitioner. We wish to add that in this jurisdiction, we have a very elaborate and effective appeal system. Whenever a litigant is not satisfied with a decision, ruling or judgment of the High Court, such a litigant is at liberty to appeal to the Court of Appeal and in turn to the Supreme Court or Constitutional Court depending on the nature of the matter concerned. Therefore, the door to justice does not close at the High Court or Subordinate Court levels. Hence, the Petitioner has available avenues or remedies, including abridgment of time, review and appeal, through which her legitimate concerns can be effectively addressed in a speedy and less costly manner. We now turn to consider the second issue raised by the 3 rd and 6 th Respondents for the issuance of a civil restraint order against the R19 Petitioner. We have seriously addressed our mind to the law relating to such orders. Civil restraint orders are issued against vexatious litigants whose repeated actions or applications are without m erit and tend to be damaging to public interest in that the scarce and valua ble judicial resources are wasted on barren and misconceived litigation, to the detriment of other litigants with meritorious cases to try. A civil restraint order is an extreme measure taken where other means of deterring frivolous actions, such as condemnation in costs or security for costs, have failed. In our review of Zambian decided cases we have not come across any case where a civil restraint order has been issued in this jurisdiction. However, Order I of the Constitutional Court Rules provides for recourse to the English law, where necessary, in terms of practice and procedure. Under English law, instances abound regarding the issuance of civil restraint orders with Grepe v Loam8 being the first r ecord of such an order. In th at case, the Court was a sked to restrict the right of a group of litigants from beginning further court actions without first obtaining the Court's consent. The Court held that it had such power where it found that a litigant had m ade repeated and frivolous a pplications in an attempt to challen ge an order already made between the same parties. Quite apart from th e civil restraint orders b ein g issued against a frivolous litigant, in Attorney General v Ebert9, the Court went on to issue an order barring the Respondent, Gedaljahu Ebert, from entering the Royal Courts of Justice without express permission, excep t for the purposes of attending a h earin g for which h e h ad been granted R20 perm1ss10n; barring him from any form of communication with anyone at the court except for the purpose of making the formal applications for which he had sought permission; requiring him to make in writing in a particular form any application he might wish to make and providing that any such application be determined in writing unless the court directed an oral hearing; and providing for the dismissal without being heard of any application of any kind which was not made in that form. The Court was clearly faced with a litigant who made countless wild and damning allegations in claims that had been brought over time and again. In granting the order, the Court observed that it was incumbent on the court exercising such power to ensure that nothing it might do amounted to an improper hindrance or interference with a litigant's right of access to the court or otherwise disproportionate. We agree. In Perotti v Collyer-Bristow (A firm) 4 and Bhamjee v Forsdick and Others3, the Court of Appeal was faced with litigants that had made numerous frivolous applications. In both cases, the Court of Appeal determined that there was need to issue civil restraint orders against the respective litigants as their conduct was wasting valuable judicial resources. We have taken time to go through some of the leading cases on civil restraint orders so as to bring out the elements that we should consider in determining whether or not the Petitioner's conduct, as alleged by the 3 rd and 6 th Respondents warrants the use of this Court's R21 inherent jurisdiction to prevent abuse of the court process by way of a civil restraint order. While it is abundantly clear that the Petitioner has made a number of applications under cause 2014/HPC/0057, we are of the considered view that this fact alone is not enough to warrant this Court taking the extreme measure of issuing a civil restraint order against the Petitioner with respect to this Court. We note that the concerned numerous applications are under cause 2014/HPC/0057 and the 3rd and 6 th Respondents appropriately applied for a civil restraint order in that action for which they are still awaiting a ruling from the Court below. In the decided English cases referred to above, the Court of Appeal was faced with a countless number of frivolous applications which were a cost on the scarce resources of the judiciary. This cannot be said to be so in the case at hand as this is the first time that the Petitioner is approaching this Court in the manner she has done. Bearing in mind the principle of access to justice in a democratic state, it is our considered view that issuing a civil restraint order should only be done against extreme frivolous and vexatious litigants who cannot be reasonably dealt with in any other way. This should be considered on a case by case basis to ensure that the order is not disproportionate and an improper hindrance to a litigant's reasonable access to justice. Having considered the application for a civil restraint order against the Petitioner in light of what has been discussed above, it is apparent that in this case, the 3 rd and 6 th Respondents have not proved or • R22 demonstrated the need for the restraint order to t h e required standard. We thus decline to grant a civil re straint order. Based on the success of the first preliminary issue which goes to the root of this action, we hereby dismiss this Petition in its entirety and order that costs shall be borne by the Petitioner. A. M. SITALI CONSTITUTIONAL COURT JUDGE M. S. MULENGA CONSTITUTIONAL COURT JUDGE - ........................................... E. MULEMBE CONSTITUTIONAL COURT JUDGE P. MUL NOA ....................... ~ ................... .. M. M. MUNALULA CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE