Democratic Progressive Party v Malawi Electoral Commission (Civil Cause 127 of 2024) [2024] MWHC 51 (9 October 2024)

IN THE HIGH COURT OF MALAWI SITTING AT BLANTYRE PRINCIPAL REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 127 OF 2024 BETWEEN DEMOCRATIC PROGRESSIVE PART Y...............cccssecceccesceccssseeeeese LATMANT -AND- MALAWI ELECTORAL COMMISSION. .............ceccecccscccccssreecceceees DEFENDANT CORAM: HH ELIJAH BLACKBOARD DAZILIKWIZA PACHALO DANIELS Mr. Tambulasi, Counsel for the Claimant, Mr. F. Mathanda, Court Official, NOTICE OF REJECTION DANIELS AR. “the court has the power to protect its own procedure against abuse, and control the conduct of the advocates who exercise the privilege of audience.”! (Emphasis supplied) “It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases...”” (Emphasis supplied) ’ Webb D. Hopeless Cases: In Defence of Compensating Litigants at the Advocate’s Expense. (1999) 30 (1) Victoria University of Wellington Law Review 295. Par 299 2 Yaya Towers Limited vs. Trade Bank Limited (In Liquidation) Civil Appeal No. 35 of 2000 1. Is the claimant being denied her constitutional right to vote? Can she even possess that right? Has she been denied any civil rights? Did she go to register as a voter somewhere where a zealous elections officer (credit be given to their work) or whosoever it may be, returned her on the premise that, she did not possess a national identity card? We do not have immediate answers. We do not promise that we will. In fact, the claimant herself has not supplied us with answers in the originating process. Perhaps, she has capacity to possess a national identity card or to be forced into having one? There is, a sea of questions that are coming to our faculties with force, but, we decline to announce ourselves, for ours 1s apolitical role to only deal with legal issues, regard being had to prescriptions of law. We accordingly warn ourselves not to divert from this our premise. Perhaps, we are asking the wrong questions? We do not know. We wish we did. But we do not. It still torments our mind to ask, has she shown any reasonable cause of action? Or, is it even for us, to determine that? The facts, will soon betray her on many a question we have. But, why then is the claimant coming in her own name over the issues of voter registration as though she has capacity to have her voting rights violated directly? Ours is simply a wonder. We are unsure as to what is the motivation of the claimant in coming in her own name. We must in /imine determine the fate of the originating process for want of capacity. We think her coming is an outright abuse of court process. We will later on, call to duty Order 5 rule 10 of the Courts (High Court) (Civil Procedure) Rules, 2017. For now, we will calmly relax the spirit of the rules. Unless otherwise stated, reference to rules, should mean, the Courts (High Court) (Civil Procedure) Rules, 2017. Be that as it may, maybe we should allow ourselves to ask the last question? However, we must make no promise on that, rest we betray our inquisitive finger later. But, who anointed her to be a constitutional guardian, walking around our streets and villages, volunteering hope to those she thinks will be denied the right to vote by the Defendant’s decision to enforce section 12 of the Presidential, Parliamentary and Local Government Elections Act, 2023? Was it not easy for those with standing to come in her stead? We have searched and searched through their summons and the statement of case and they have not supplied us with the answers we need. Clearly, they are testing the waters. We must pause here, and make a promise that, we will come back to address this issue later when the time is ripe. Now is not the time. Notwithstanding the above, we must announce that the Claimant committed a gargantuan number of procedural sins which are fatal in their nature. When, we first made these observations, we had thought of invoking Order 5 rule 9(a) of the Courts (High Court)(Civil Procedure) Rules, 2017. The Order provides as follows: The Registrar may reject a document that 1s filed in the Court where: (a) the document does not comply substantially with the requirements of these Rules (Emphasis supplied) But, we restrained our finger to so proceed and we accordingly referred this matter to the honourable Judge with the observations we wrote by our pen on the summons. We were motivated by Order 5 rule 11 of the Courts (High Court)(Civil Procedure) Rules, 2017. The order is couched as follows: The Registrar may reject a document or refer the document to a Judge for directions about how to deal with it. (Emphasis supplied) Clearly, the word “or” in the provision in issue, gives us two possible choices. One, we could reject the processes on our own or secondly, we could as was in this case, refer the matter to the honourable Judge with the observations made. That, is what we did. Jn casu, we thought that the summons were supposed to be rejected first for non- compliance with the rules and being an abuse of court process. We will come back on the abuse of process argument. So, after our referral to the honourable Judge, we accordingly, on 7 October, 2024 received directions and or authority from the honourable Judge for us to proceed as we hereby do. It is clear, that the honourable Judge was proceeding under Order 5 rule 12 of the Courts (High Court)(Civil Procedure) Rules, 2017 in giving us his directions. The said order is framed as follows: A Judge may direct the Registrar to accept or reject the document. We wish to put our lip on the framing of this rule. Our view is that, rule 12 needed to be a sub-rule to rule 11 and not a stand-alone rule as it is. We think that, that was an oversight, because when one reads rule 12, the implication one has, is that, the Judge can randomly direct the Registrar to so act. But, logically that does not make sense, for the only place where the Judge is referred to in the Order is on this rule and Order 5 rule 19 of the Courts (High Court) (Civil Procedure) Rules, 2017. We think that, rule 12 should be read as a consequence of the referral by the Registrar on rule 11. This reasoning is supported for instance, with the way Order 25 rules 2 (1) & (2) of the Courts (High Court) (Civil Procedure) Rules 2017 are couched. This, is our reading of the spirit of the rules. We may be wrong. But, we know that we are not. That said, we still remember that, we are under duty to show our basis for rejecting the originating process herein. We will, soon enough. Not now still. However, we have given ourselves permission to put our mouth on general issues that affect our daily conduct of work. Thus, we have always maintained the view that, whenever a proceeding is commenced by the hand of Counsel, without first having a searching of his soul, as to whether the said proceeding should be brought to Court, solely on his usual confidence and or experience in his daily trade, and in the end, he omits to appreciate whether he should in the first place, bring that proceeding or not, (then he must either be overly confident of his art and therefore naive or that, he may simply be careless to know that his may be a hopeless proceeding) or that he casually omits to be careful enough, so as to be meticulous before he brings his case and thus, thinking to himself either that, the Court will share in his omission and therefore issue an originating process, which otherwise it would not have issued for want of merit (thereby perpetuating the vice of an abuse of the processes of the Court). Respectfully, we submit that, if Counsel will ever be that careless, Counsel will not escape the cunning eyes of our Court and where like in this case, the Court shall properly and respectfully guide Counsel who is a quasi-member of the Court (as his, is a Statutory duty under section 32 of the Legal Education and Legal Practitioners Act, 2017, as an officer of the Court) not to promote frivolous or hopeless claims which he should or ought to know that, such frivolous and vexatious claims may not have real prospect of success in Court, and therefore costly if not arrested from their inception. Our duty, is to curb against that. This, duty is to say the least, judicial, because it would require us to exercise our legal mind. What is the role of the Registrar? We think Registrars must out of duty not just issue documents and sign them incorrectly thinking to themselves that perhaps theirs is simply an administrative role. We submit that, that is not always the case. There are those administrative duties that we gladly do. But, not when it comes to exercising our legal mind. We must exercise our legal mind on the processes that get before us so that, if we are to arrest those processes that need not to see the light of the day, we must so do, because that will further the imperative of the rules, which is to avoid costs and unnecessary expenses. We had said it before, and we think we will not be guilty of anything if we are to repeat ourselves as follows: As gatekeepers we must again articulate, our duty is to ensure that only those processes that are prima facie ripe in law are issued for the attendance of the Honourable Judges. We must not rubber-stamp everything, assuming the Judge will decide; to do so, is to respectfully fail in our duty. Exactly, that is what we think is the correct position. We are tempted to say that, if any messenger of judicial truths will blossom and say contrary things from the above discourse, they should not be believed. But, we will keep that to our mind and we will not assert that. We warn ourself. However, there are those who would for once doubt and say to themselves that, is this not the Registrars blessing themselves before the time is so ripe? In that, what we are doing is in fact, us handling substantive matters that otherwise should be dealt with by the honourable Judge? Our answer to that is simple, we do not think that we are being overly ambitious, we have just read the law and we 3 In The Matter of The Admissions of Alfred Hlewani Ndhlovu, Chikondi Kwacha Changwanjira, Temwa Peace Mfinda, Jean Sharon Banda, Nicole Myra Chombo and in the Matter of the Admission of Flavia Petra Mulalo in the Matter of the Legal Education and Legal Practitioners Act, 2017 Admission Causes No. 28,29,30,31,32,33,34,35&36) (Unreported) think the law has permitted us without any ambiguity whatsoever that, where we smell an abuse of Court process, we should on our own motion thwart such efforts and or inclinations so that, the honourable Judges should only have before them cases that are befitting the honour and the finger of their enormous authority. 7. There is a reason why the rules have been so promulgated as to allow Registrars to reject documents when it appears to them that they are prima facie an abuse of Court process. Registrars have thus, an duty to make sure that they apply their mind on the processes they issue because it must be made clear that, to do so, not only is it a statutory authority they so exercise, but that authority is re-echoed in the rules. If Registrars will not arrest matters not befitting the attendance and the honour of the Judges, then we would have chaos following and we will be asking ourselves why Judges have cases which they ought not to have. For instance, Registrars have within their judicial hands, the authority to curb both real and perception of corruption and Judge shopping, by exercising their statutory authority under section 6A(2) of the Courts Act, where the Registrar can reject a document and send it to an appropriate division. The said section provides as follows: (2) Where a person commences a matter or makes an application in a division other than the appropriate division in accordance with this section, the Registrar shall, on his own volition or on application, immediately transfer the matter to the appropriate division. (3) The Courts may order that any costs arising from the process under subsection (2) shall be borne by the party who commenced the matter in an inappropriate division (Emphasis supplied) 8. Clearly, when one reads this, it becomes clear that, to make a decision under subsection 2, the Registrar must understand the nature of the proceedings which would include him applying his mind. To cement our view, there is no way subsection 3 would be considered administrative work because then the Registrar will make an order on costs because subsection 3 must be read together with subsection 2. In fact, subsection 2 further shows that there can be an “application” which can invite the Registrar to exercise his legal mind. That is how we understand the law. It would be incorrect by whoever harbours the view that ours is administrative function only. We submit, it is not. Hon. Chipao J was not economical and correctly so with her wisdom in the case of Financial Intelligence Authority v Zahra Ali and First Capital Bank of Malawi* where she held as follows: 4 The Financial Intelligence Authority v Zahra Ali and First Capital Bank of Malawi civil cause no 2 of 2024 (Unreported), 10. “it is crucial for the judiciary to be vigilantly on guard against the malpractice. To arrest this malpractice, we direct and order Registrars to diligently scrutinize originating processes and invoke Order 5 Rules 9 to 13 of the CPR which empowers them to reject documents.” (Emphasis supplied) The honourable Judge continued to hold that, we must apply our legal mind when issuing processes of the Court and that our work within that line, must not be mistaken with mere administrative work. We agree with the Court. If it were not so, we would respectfully have said our views. But, we agree with the correct reasoning of the Court in the case above. Needless to say, we have at many a time used similar kind of reasoning and send cases away, being that are commenced in Blantyre when the cause of action happened elsewhere. That, we have been doing regard being had to circumstances of each case. Nonetheless, where in doubt, we have sought Counsel to address us on why we should not reject their documents or refer their cases to appreciate forums. That, is exactly what we have been doing and we unless otherwise bound, will maintain the tradition of being vigilant in our position as the Registrar of the High Court (see section 2 of the Courts Act). All this, is to say, like in this case, we will be rejecting the summons. The reasons will soon be apparent. Clearly, Order 5 rules 9 and 12 and 13 of the Courts (High Court) (Civil Procedure) Rules, 2017 allows us to proceed as we will do in this case. We labour as we are doing that, but for those who think we are mere messengers. Our unequivocal message is: we are not. It would be a blatant misuse of our legal mind, if the law was to be understood that way. But, we are aware that, we work under the superintendence of the Hon. Chief Justice, the Judges and the Registrar. Now we must accomplish our earlier promise. We said, the claimant is guilty of severely breathing the rules. Like articulated above, we have been ordained by the law to proceed rejecting the summons without batting an eyelid. Grudgingly, we are taking our time to remind Counsel that Order 5 of the Courts (High Court)(Civil Procedure) Rules, 2017 does not state the time within which a claimant should serve the summons on the defendant. We do not suggest that, that is present in the claimant's originating process. We are simply making an observation on how Order 5 of the Courts (High Court) (Civil Procedure) Rules, 2017 was promulgated. We simply think there is a logical lacuna in the provisions of this Order and we submit that, the Order should have been complete in and of itself. Notwithstanding the above, we would be guilty of unfair criticism of the rules, if we were not to mention that, under Order 7 rule 25(1) of the Courts (High Court)(Civil Procedure) Rules, 2017, the summons are supposed to be served within a period of 3 months from the date that, the Registrar exercised his statutory authority under section 3 of the Courts Act as read together with Order 5 Rule 4 of the Courts (High Court)(Civil Procedure) Rules, 2017. For our purposes, we must reproduce the relevant part of Order 7 rule 25(1) & (2) as follows: (1) A summons shall be served within 3 months of the date endorsed by the Registrar under Order 5 rule 4. (2) Where a summons is not served within 3 months of the date endorsed by the Registrar under Order 5 rule 4. 11. Ironically, whether by design or by an error of the hand, we note that the Note under Form 1 as filed by Counsel says something different. The Note on the summons shows that the summons would have to be served within 4 calendar months. Although, we note that, that is clearly an error in Form 1, in that, it ought to have complied with the provisions of the substantive rules. The correct position as we see it, is not to have the Note in the summons indicating 4 months as the claimant has done in this case, it has to be within 3 months as is required by the substantive rules. That, is exactly the first sin that has been committed by the claimant against the rules. It is fatal, as would be seen in the immediate next. 12. Suffice to say that, we would not be redeeming the time correctly, if we were to pretend that, we are the first to note this mishap in the rules. What should we do? It is simple what we must do. We must simply reveal to those that read, that Katsala J (as he was then) made similar observations in the case of Utawaleza Beverages Company Limited v Twizza (Proprietary) Limited’, where the reverend Court had the following to say: It is clear from the foregoing that three is a conflict between what is stated in the Note in Form | and what Order 7 rule 25(1) provides. Form 1 prescribes 4 months as the validity period for the summons while Order 7 Rule 25(1) prescribes 3 months. The question is which is applicable period ? Is it 4 or 3 months? In my judgment, the applicable period is 3 months. Since the periods in the Note in Form | are not supported by a specific rule. I would find that Order 7 Rule 25(1) must prevail over the Note.° 13. Clearly, this disposition is alien to what the claimant has done. This, is because, not only is the rule to be construed as we earlier exposed, but the High Court has pronounced itself without contradictions known to our faculties this far, and we should think Counsel ought to have known and correctly prepare his summons by putting the correct periods of service of the summons. That, like earlier held, he did not do. Is this omission so fatal? Or simply an irregularity, in the gentle language of the rules? We do not know yet. But, that is exactly how not complying with the rules has been categorised. ° Utawaleza Beverages Company Limited v Twizza (Proprietary) Limited (Unreported) ° Ibid 14. Whilst still on this issue, we also note that the claimant has wrongly indicated in the summons that, should they require to serve the summons outside the jurisdiction, then it would be 6 months within which to serve the summons. This, is the second violation of the rules the claimant has inflicted on the soul of the rules. We are worried. But, we have read the rules and we have seen nowhere in the rules where 6 months is so required. What would we do? If Katsala J (as he was then) did not put his mouth on this? We must say, that we would think still that, the rules in themselves would have to take precedence over what is found on the Forms. But, Katsala J (as he was then) had his hand on this issue in this way: The question may be what if the summons is to be served outside the jurisdiction? In my view, there is no difference. According to Order 7 Rule 25(1) it must be served within 3 months of the date of issue. The rule has not provided for a different time period for service of the summons outside the jurisdiction. By this we understand the days to start from the date that the Registrar exercised his hand to issue the summons under section 3 of the Courts Act as read together with Order 5 rule 4 of the Courts (High Court) (Civil Procedure) Rules, 2017.’ 15. Thus, the summons that the claimant has filed are seriously defective. They, are a violation of the rules. Why is that that case? Because, the way the summons have been crafted, they would if anything, be served on the defendant outside the three months period without leave of the Court, which under Order 7 rule 25 (2) of the Courts (High Court)(Civil Procedure) Rules, 2017 a renewal of the summons would have to be sought if they are served after 3 months. That, is a third violation of the rules that the claimant has this far committed. That aside, we cannot claim to have anything more useful to add to the eloquence and the command with which the learned Katsala J (as he was then) described the summons served after the prescribed period. This is what the Court said: Maybe the question can be what does the rule mean by "the summons ceases to be of any effect"? In my judgement, it simply means that the summons loses its authority as a court document. That is, it stops being a document embodying the Court's authority. All the demands, requirements, prescriptions, commands, etc, etc. made therein cease to have any legal implications or effect. It is devoid of any legal power and or authority. It is of no use, authority or power as any other piece of paper you may pick in the streets.® 16. That is exactly what these summons are capable of. The claimant should have indicated three months covering service within and or outside the jurisdiction. We will be on guard from henceforth to make sure that we enforce the reasonings of Katsala J (as he "Ibid 8 Ibid 17. 18. was then) from those that seek our audience at the Principal Registry. We will maintain the professional standards by enforcing strict adherence to the rules and indeed prescriptions of law. That, is what we are ordained to do. We are doing that. We will continue to. When at it, we will not sway in our resolve. The above notwithstanding, the sins that the claimant is guilty of as against the rules are refusing to quench. Thus, the fourth violation of the rules, is even more serious. They have clearly brought the summons as envisaged under Order 5 and not the correct adjusted summons under Order 19 of the Courts (High Court) (Civil Procedure) Rules, 2017 respectively. Suffice to articulate that, that is besides the fact that, the claimant is bringing to Court summons which are raising issues of a constitutional nature, where without going into the merits of their arguments, the claimant is alleging that, sections 40(3) (on the right to vote) and 77 (on the eligibility to vote) of the Republic of Malawi (Constitution) 2010, are being infringed and or violated by the Defendant’s enforcement of section 12 of the Presidential, Parliamentary and Local Government Elections Act, 2023 which requires that, one should have a national identity, before they can be registered as an eligible voter. So they claim. We will not pre-empt the merits, because that is not a cap, we can fit. But, they are in essence, challenging the law even in the manner of their sought reliefs and declarations desired. Consequently, the claimant should have brought the adjusted summons under Order 19 rule 3(1) Courts (High Court) (Civil Procedure) Rules, 2017 which holds that, a proceeding under this Part, shall be commenced by way of summons under Order 5 Courts (High Court) (Civil Procedure) Rules, 2017. Here is the exact wording: Subject to sub rule (2), a proceeding under this Part shall be commenced by summons under Order 5. We must make it clear that, indeed we have the summons before us, they have complied in part, with Order 19 rule 3(1) of the Courts (High Court) (Civil Procedure) Rules, 2017 and so have they so complied with Order 19 Rule 4 which provides as follows: Notwithstanding Order 5, every summons under rule 3 shall be signed by the claimant or his legal practitioner, and shall contain a concise statement of case indicating the provision or provisions of the Constitution which the Court shall interpret or apply. However, the initial directions in the originating process have not been abridged in light of Order 19 rule 5 of the Courts (High Court) (Civil Procedure) Rules, 2017. Here are the relevant parts of the Order: (1) A defendant who wishes to defend the whole or any part of the summons under rule 3 shall, within 7 days after service of the summons, inclusive of the day of service, file his response. 19. 20. 21. (2) The defendant who has filed a response shall serve on the claimant a defence within 14 days from the date of the response. (3) The Court shall, within 7 days from the date of the filing of the defence, set down the matter for a scheduling conference where the Court shall give directions on the further conduct of the proceeding. (Emphasis supplied) We have had time to examine the initial directions just like any other Registrar is obliged to be so meticulous when discharging our like duty, and we have found the summons to be wanting, in that, they have not complied with Order 19 rule 5(1) & (2) of the Courts (High Court)(Civil Procedure) Rules, 2017. The claimant needed to abridge the periods as this is not the usual summons that we deal with all the time. This, they have not done. We mean they have not abridged the periods. Whether by design or not, we do not know. We are unsure whether we will know what caused the omission. We refuse to speculate. What we have are the facts, they have an originating process which is supposing the ordinary summons which in our view, is not correct. Our view is expressed with respect. Put clearly, unlike the 14 days that the claimant has written on paragraph 3 of the initial directions, what that should have been in our view, is 7 days as is required and implied under Order 19 rule 5(1) of the Courts (High Court)(Civil Procedure) Rules, 2017. Again, the sins for the claimant have not so far ended, for they are relentless as they come, by this, we mean that, they have violated the rules for the fifth time. Thus, paragraph 4 of the initial directions requires that a response be filed by the defendant within 14 days from the date of service. That, is what counsel has so far prepared. Respectfully, that cannot be. That, should be 7 days, contrary to what the claimant has so far indicated in their originating process. They, are assuming that we should be dealing with ordinary summons. We are clearly not dealing with those. The response should be filed within 7 days from the date of service where the summons are alleging the application and interpretation of the Republic of Malawi (Constitution) 2010. Moreover, the claimant has further violated the requirements of the rules, now the sixth time, in that paragraph 5 of the summons herewith should have indicated that, upon filing the response, within 14 days from that date, the defendant would then be required to serve the defence. Arithmetically speaking, that should be within 21 days and not the usual 28 days that they have indicated in the initial directions. This, is exactly what Order 19 rule 5 (2) of Courts (High Court)( Civil Procedure) Rules 2017 provides. They have not complied with it. Again, they assumed that we should be dealing with ordinary summons. But we are not, because of the nature of the claims they have made. They should have abridged the times. They did not. If the sins they have so far committed against the spirit of the rules were ended here, we would be moving ourselves to 22. 23. conclude that, what they have done is just mere irregularities and we would be curing the sins by making necessary orders and directing the claimant to repent through making corrections as the law would permit. But, that is not the end of their violations of the rules of the Court. Before we can go into what we think is the severe breach, that perhaps will not even redeem the summons, we have here with us that, the claimant has further defiled Order 19 Rule 5(3) of the Courts( High Court) (Civil Procedure) Rules, 2017. This defilement of the rules, is for our purposes for the seventh time. We observe this, none-compliance of the rules in paragraph 7 of the initial directions, which supposedly states that, within 7 days from the closure of statements of case, the proceedings shall proceed to mandatory mediation, is brutal. But, that is what the claimant has written. We note that, that cannot be attained for a matter of this nature. That, we say because, under Order 19 rule 5(3) of the Courts (High Court) (Civil Procedure) Rules, 2017 a case of this nature, need not to go for mediation. Under the said provision, the matter is directly supposed to come for scheduling conference, where the Court shall give directions as to the further conduct of the proceeding. It is clear in our view that, that is exactly an avenue where like in casu, the honourable Judge or the Court would refer the matter under Order 19 rule 7(1) as read together with Order 19 rule 3(3) of the Courts (High Court) (Civil Procedure) Rules, 2017 to the honourable Chief Justice to exercise his powers under section 9 (2) of the Courts Act. Sadly, the initial directions are so defective in their directions. They presuppose a mandatory mediation, which does not come into being for a case of this nature. This is not like a case where an argument in a proceeding comes in that alerts Counsel that they may be dealing with issues involving the application and the interpretation of the Constitution. The claimant knows from the onset that, they are challenging a statute with a measure of the Republic of Malawi (Constitution), 2010. Hence, the claimant ought to have properly drafted their originating process. Unfortunately, they did not. With regard to the rules, the eighth sin they have committed is seen on paragraph 4 of their summons, which has not by name, named the current Honourable Chief Justice. In fact, not only is Counsel required to name the current Chief Justice, but the summons must mention the Chief Justice of the High Court of Malawi. The Claimant has just mentioned the office without naming in the manner as required and as we have indicated. Like said elsewhere in this order, we said to ourselves that, we would be directing that all this guilty conduct as against the rules is curable, but their violations of the rules is substantial that under Order 5 rule 9(a) of the Courts (High Court) (Civil Procedure) Rules, 2017 as above invited, we would be good now, in law to reject the originating process in limine. But, not only are we rejecting the documents for their substantial breach of the rules, but, they have not only violated the rules per se, they have also proclaimed themselves as a constitutional custodian, to express the pain of the citizenry. That, is in our view problematic in that, we think they do not have standing to so proceed. And they know. Or they ought to have known. Anyway, we would be citing a voluminous number of case authorities on standing, including the traditional ones. But, that, we will not do. The issue of standing is well settled a rudimentary position of law. Perhaps, for the avoidance of doubt, we must summarily cite the law. On that, we say, it would be amiss of us not to reckon that, honourable Justice Mambulasa has had his mouth on this issue in the case of Anglican Diocese of Upper Shire & Bishop Vita Malasa -v- Rev Edward Kawinga and Peter Malasa’, where the eloquent Judge had the following to say: ... Courts in Malawi have held that to establish standing, a party must satisfy the Court the Court that the conduct of the Defendant adversely affects his or her right over and above others. The learned Judge further cited with approval the Supreme Court of Appeal for Malawi in the traditional case of Civil Liberties Committee v Minister of Justice and Another", where the Supreme Court held as follows: ...18 So basic that we sometimes take it for granted that a person who has no right or interest to protect would not commence an action in a court of law, Courts exist to conduct serious business. They deal with real life issues affecting parties to an action. The principle remains healthier and it is still kicking, this is not to say that, it has not suffered criticism, but it remains the applicable position, whether that is to be the case or not, is not for us to determine. Ours, is simply an duty to enforce it. We will. 24. Accordingly, if you come to Court, not knowing whether you have capacity or caring less as to know whether you have capacity or not, you must be in to abuse the processes of the Court. But, the claimant should know better. We think this is not the first time she has come to Court. Clearly, she is yet to learn her lessons. Was she denied to register as a voter by the national registration bureau at the sanction of the Defendant? Certainly, not. How can that be? But, the idea of having a modern political Samaritan is fancy to fathom, but the injured, over and above others, should be the ones to come to Court. If anything, all the claimant can do, is to identify those directly affected and offer her saviour instincts on them. Perhaps then, her good constitutional Samaritan inclinations will be fruitful. Today, they are not. The principle of law has always been that, to have audience with the Court you must have suffered injury over and above others so as to have standing before any competent Court of law. This, is a preliminary and basic legal issue of capacity. It is like us allowing the issuance of a proceeding of a person without ® Anglican Diocese of Upper Shire & Bishop Vita Malasa -v- Rev Edward Kawinga and Peter Malasa Civil Cause No. 328 of 2022 (Unreported) 1° Civil Liberties Committee v Minister of Justice and Another [2004] MLR (SCA) 25. 20. capacity to sue banking on the idea that, let the honourable Judge deal with that. No, we will not allow an abuse of Court process pass through our mortal hands. Here, let us pause again and yet ask, what specific injury has she suffered to warrant her standing in Court? Certainly, none. This, supposed proceeding will be dismissed at the door of any sacred chamber of our honourable Judges for want of standing. This we say, like we have said earlier, that this is a forceable consequence. If then, we allow it to proceed, we will be participating in depleting the little precious resources we have as the Court. No, that will not allow that to happen under our watchful judicial eye and vigilance. Rest we be taken by the events of our pen, now, we have remembered what we earlier promised, when we first introduced these, our remarks, that we would be inviting to duty, Order 5 rule 10 of the Courts (High Court)(Civil Procedure) Rules 2017. The said Order anoints us with the authority to reject these summons for their manifest abuse of our processes. Thus, Order 5 rule 10 is deliberately and with a correct intent, couched as herein indicated: Rules 11, 12 and 13 shall apply if a document that is filed in the Court appears to the Court on its face to be an abuse of the process of the Court, or to be frivolous or vexatious. (Emphasis supplied) To those who would doubt our authority in the above discourse, we would only invite them to read the dictates of this Order as read together with Order 5 rule 9 (a) of the Courts (High Court)(Civil Procedural) Rules, 2017. Ours is but, the power to reject documents that have not substantially complied with the rules and also those that are prima facie frivolous, vexatious and an abuse of Court process. That, is exactly what we should be doing now. The question we must now ask ourself is this? What constitutes frivolous, vexatious claims that amounts to an abuse of Court process? Put clearly, what constitutes an abuse of Court process? We took some time for some intellectual interaction with the judgment of the Court of Appeal of Kenya in Muchanga Investments Lid vs. Safaris Unlimited (Africa) Ltd & 2 Others" where the Court held as follows: We are of course aware that we cannot comprehensively list all possible forms of abuse of Court process and that we cannot formulate any hard and fast rule to determine whether in any given facts, abuse is to be found or not, but in the circumstances of this case we do think that since the Originating Summons was instituted in the face of the admission of tenancy, this, in our view, does constitute an abuse of the Court process. !” 11 Muchanga Investments Ltd vs. Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR "2 Tbid 27. (Emphasis supplied) What we note is that, in that case, there was an admission of a tenancy relationship and yet still they continued with the suit. The reasoning applies, the claimant knows well enough that they do not have capacity to come as they have done. It is clear, from the case above, that, an abuse of Court process can be captured at the inception of the originating process. That, is why we have Order 5 rule 10 of the Courts (High Court)(Civil Procedure) Rules, 2017. Thus, a functioning system should be able to capture a potential abuse of Court process and send it to its death at the earliest stage possible. To think that, what we are doing is to discuss the merits of the case, is respectfully omitting to read the rules and the law between lines. Be that as it is, the Court in the case cited above, did not rest there, but it went on to cite with approval and admiration, the South African Supreme Court decision of Beinosi_v. Wiyley’* and in particular, the word of Mohommed CJ (as he was then) as follows: What does constitute an abuse of process of the court is a matter which needs to be determined by the circumstances of each case. There can be no all- encompassing definition of the concept of “abuse of process.” It can be said in general terms, however, that an abuse of process takes place where the proceedings permitted by the rules of court to facilitate the pursuit of the truth are used for purposes extraneous, to that objective. '* We must mention that, we also were privileged to find this decision for our reading, and we had time spent with it indeed. We think, it is so deep in its persuasion. In the instant case, we have the summons before us supposedly brought by the claimant. What we ask ourselves is this? What damage or injury to their rights has the claimant suffered? Did the claimant go to register somewhere and they were rejected to so register? We are forced to repeat this question. But, how was that? Perhaps, the claimant met what we have not seen in the summons? Again, we refuse to speculate. What we know is that, it is frivolous and vexatious for the claimant to bring an action where her rights have not been violated or that they cannot show how that they have a proper standing. An abuse of Court process is clear when one seeks the audience of the Court by self-anointing, when there are persons who should be doing that in the first place. Like seen above, an abuse of Court process is identified as a matter of fact and it refuses to be definitively defined. What we think is that, the claimant cannot or perhaps should not anoint herself as a custodian of the constitution when those that suffer any injury on their rights, may well be allowed to seek the audience of the Court. Surely, the claimant does not have the '3 Beinosi -v- Wiyley 1973 SA 721 [SCA] at page 734F-G a South African case heard by the Appeal Court of South Africa, Mohommed CJ "4 Tbid 28. 29. 30. 31. 32. right to vote. If it had, how would that be enforced? It is those people that follow her who may have a claim that she has so far anointed herself to burden. We think that burden must be lifted. But, that is just our innocent view. Clearly, we have a frivolous originating process, it should not be for the claimant to bring these legitimate issues to Court. Perhaps, as a friend of the Court. But, not coming in her own name as she has done. Our duty is to make sure that they in the circumstances as these, should not be allowed to so proceed. Surely, should we permit this matter to go on to a Judge as it is? What would happen is that, the claimant may not have a real prospect of succeeding with their claims because, they have no sufficient standing and that she cannot show a specific injury occasioned on her. Yes! she may be an interested party, but she may not show over and above a right so infringed than those of her followers who have been so denied, if at all. So, to allow this matter to proceed and then have the honourable Judge belaboured with the proceedings and then later dismiss them for lack of standing, is what prima facie we must protect and serve costs in the process. With this in our mind, we regret to respectfully communicate to the claimant that, we refuse to issue their summons for the attendance of the Court because we think, first that substantially they have mocked the spirit of the rules, with eight if not more non-compliance sins, and on the authority of Order 5 rule 9 (a) of the Courts (High Court)(Civil Procedure) Rules, 2017 alone, we reject the summons. Again, with the authority of Order 5 rule 10 as read together with rule 13 of the Courts (High Court)(Civil Procedure) Rules, 2017 their claim is on the face of it an outright abuse of the Court process and they are bringing to us a hopeless proceeding which would be properly brought by a person so affected over and above others. The claimant is not a person who should be bringing this process. We must not be heard to mean that a novel proceeding, would be an abuse of Court processes simply because it appears to us that it may not have a real prospect of success. We have said, to know that a proceeding amounts to an abuse of Court process, 1s a question of fact, to be answered on a case by case basis. What we have before us, is Exhibit A of an intendment to abuse our processes. The claimant clearly, does not have capacity to sue on the issues she has raised. Her actions are a total abuse of our processes. It is from the foregoing, that we hereby reject to issue the summons. The law would not permit the claimant to so anoint herself and violate the rules as we have this far indicated. In conclusion, we do not remember promising to answer all the questions we earlier paused, but we must say, some questions were left for our audience to think about and answer themselves. When time comes, we will provide our answers. The above are our directions, and our reading of Order 5 rule 13(c) of the Courts (High Court)(Civil Procedure) Rules, 2017 is to the effect that, these summons are as if they were never filed. Accordingly, under Order 5 rule 13 (b) of the Courts (High Court)(Civil Procedure) Rules, 2017, we return them, because we have rejected them. 33. It is so ordered. PRONOUNCED in chambers this 9" October, 2024 at the High Court of Malawi, sitting at Blantyre, Principal Registily; Givil Division. 3lackboard Dazilikwiza Pachalo Daniels ASSISTANT REGISTRAR